Can the government strip someone of his Second Amendment rights solely because he uses marijuana a few times a week? Yesterday, looking to history and tradition, the Supreme Court unanimously said no. In United States v. Hemani, the Court held that prosecuting Ali Hemani under 18 U.S.C. § 922(g)(3)’s “unlawful user” provision—based on nothing more than his own admission that he used marijuana every other day—violates the Second Amendment. This case inspired strange bedfellows, with pro-drug organizations allying with gun-rights groups, so perhaps it’s fitting that it’s also a case where Justices Thomas and Jackson can agree.
The facts include some red flags of pretextual regulatory overreach. The government searched Hemani’s family home in 2022 on suspicion of terrorism-related activity, found nothing on that front, but did get a cooperative Hemani to admit he used marijuana “about every other day.” Over six months later, the government indicted him—not for terrorism, not for drug trafficking, but for owning a gun in his own home while being an “unlawful user” of a “controlled substance” as defined in the Controlled Substances Act (CSA). The penalty: up to fifteen years in prison and disarmament for life for a man who surrendered his gun voluntarily during the search and was never alleged to be dangerous to himself or others.
Applying New York State Rifle & Pistol Association v. Bruen (2022), under which the government must overcome the presumption of Second Amendment protection by showing its regulation is “consistent with the Nation’s historical tradition of firearm regulation,” Justice Gorsuch’s opinion for the Court methodically dismantles the government’s chosen analogy: historical “habitual drunkard” laws. The government wanted those laws—vagrancy statutes, civil-commitment regimes, surety-of-good-behavior bonds—to do the work of justifying a categorical, automatic firearm ban on anyone who regularly uses any controlled substance for any non-prescribed purpose. The Court found the analogy fails on the “why” and the “how.” Historical habitual drunkards were people whose drinking left them, in the Founding-era sense, “practically incapacitated and incapable of managing their affairs”—not merely regular drinkers (and by that standard, many Founders would have qualified for disarmament over dinner). The historical laws also typically required some process—a conviction, a probate proceeding, a hearing before a justice of the peace—before anyone lost his liberty. Section 922(g)(3), by contrast, just flips the switch the moment someone becomes a regular user, no process required.
Additionally, the federal government’s actions moving some marijuana products to a schedule under the CSA indicating a lower potential for abuse and tolerating its widespread use left the government, as Gorsuch put it, “awkwardly positioned to suggest that the millions of Americans who now regularly use marijuana are categorically and unusually dangerous.” Notably, Gorsuch reaches back to quote then-Judge Barrett’s Kanter v. Barr (2019) dissent from her Seventh Circuit days, warning that giving the government “broad power to designate any group as dangerous” in order to disqualify its members from gun ownership “would risk allowing it to ‘quickly swallow’ the Second Amendment.” Barrett had anticipated Bruen’s history-and-tradition test at the time, and it wouldn’t be surprising if more cases involving nonviolent felon disarmament were to make their way to the Court.
Still, it should be noted that Hemani is a narrow decision, and the majority is careful to say so. The quantity, potency, and effect of marijuana used by Hemani is unknown from the record. The government still could potentially disarm someone presently intoxicated; felons convicted of drug-related crimes; actual drug addicts (as opposed to mere users); users (including of marijuana “or any other drug”) shown “by individualized proof” to be dangerous to themselves or others; or users of a particular, more dangerous drug. What the government cannot do is what it tried here: disarm an ordinary marijuana user with no individualized showing of danger, based on an analogy to laws that targeted something else entirely.
Justice Thomas writes a concurrence that raises another constitutional issue, maintaining that § 922(g) may exceed congressional power under the Commerce Clause altogether. A law broad enough to criminalize possessing any item that ever crossed state lines—regardless of any actual nexus to interstate commerce at the time of possession—starts to look less like a regulation of commerce and more like a general federal police power, the very thing the Commerce Clause was never meant to confer. Thomas says in his closing paragraph, “This question merits a closer look in an appropriate case.” That is a classic Justice Thomas call to action.
Justice Jackson, joined by Justice Sotomayor, writes separately to maintain that Bruen was wrongly decided, even while joining the majority’s Bruen-faithful opinion in full. She argues the Court’s reasoning is really employing means-end scrutiny in history-and-tradition clothing and that the Court should make that explicit. Funny thing, though: Jackson spends her concurrence calling Bruen “unworkable,” accusing it of forcing judges into “the unfamiliar and difficult tasks of sifting through centuries-old evidence in order to answer ‘contested historical questions,’ and ‘applying those answers to resolve contemporary problems.’” And yet that’s precisely what the Court did yesterday—unanimously. Hemani is proof that Bruen’s history-and-tradition approach can resolve a genuinely thorny modern problem by careful attention to what Founding-era legislatures actually did and why.
Finally, in a separate instance of strange bedfellows, Justice Alito—joined by Justice Kagan—concurs only in the judgment, on narrower grounds. He would affirm solely because the government should have to show that Hemani was habitually and pervasively incapacitated in the manner of the historical habitual drunkards the law targeted.
Hemani ultimately makes for a narrow holding, one that will have less of an impact on Second Amendment jurisprudence than Bruen or, in all likelihood, the Court’s forthcoming decision in Wolford v. Lopez. What is significant is that the justices came to their decision based not on their personal views of guns or drugs, but on the history and tradition surrounding gun regulations. That is in keeping with Bruen and preserves the Second Amendment.