On March 2, the U.S. Supreme Court heard oral arguments in U.S. v. Hemani. The case involves a defendant who is fighting a federal indictment for possessing a firearm while being a marijuana user.
The Gun Control Act of 1968 created broad categories of people prohibited from possessing firearms under federal law. While some in these prohibited-persons categories pose a genuine danger, the categories are overinclusive and implicate individuals who have not demonstrated any inclination towards violence whatsoever.
At issue in Hemani is a prohibition (18 U.S.C § 922(g) (3)) prohibition on firearm possession by anyone “who is an unlawful user of or addicted to any controlled substance.” Some of those implicated by the statute may be people in the grips of a crippling drug addiction that causes them to pose a danger to themselves or others. However, the government has used the law to bar occasional marijuana users, even when they are not under the influence, from possessing firearms. This encompasses those using the drug in compliance with state law in the 40 states where it is legal to some degree, including those using it under a doctor’s prescription.
In the landmark NRA-supported case NYSRPA v. Bruen (2022), the Supreme Court made clear that for a gun-control measure to pass constitutional muster, it must be “consistent with this Nation’s historical tradition of firearm regulation.” The Court elaborated on this topic in U.S. v. Rahimi (2024), suggesting that a judicial finding of dangerousness comports with the historic tradition of measures aimed at disarming dangerous individuals.
NRA’s amicus brief in Hemani explained that there is no historic tradition of disarming individuals merely for sometimes using intoxicating substances. Rather, “historical intoxication laws regulated conduct: restricting the carrying, discharge, or purchase of firearms only while a person was intoxicated and only for as long as that condition lasted.” The historical record reflects “situational restrictions rather than categorical disarmament.”
Moreover, the brief made clear that the government’s application of the prohibition “violates the historical rule that disarmament of individuals must be based on demonstrated danger,” pointing out that the government didn’t “make a serious effort to carry its burden” on this pivotal issue.
At oral arguments, several of the justices appeared skeptical of the government’s case—and not necessarily just the ones you might think.
In response to the government citing historic habitual-drunkard laws, which allowed for some curbs on the rights of those individuals, as justification for the current federal scheme, Justice Neil Gorsuch challenged the argument by examining the historical record of significant alcohol use at the founding. He noted:
“John Adams took a tankard of hard cider with his breakfast every day. James Madison reportedly drank a pint of whiskey every day. Thomas Jefferson said he wasn’t much of a user of alcohol; he only had three or four glasses of wine a night, okay? Are they all habitual drunkards who would be properly disarmed for life under your theory?”
Justice Amy Coney Barrett appeared similarly doubtful of the government’s arguments. She noted that the statute extends well beyond marijuana to implicate all controlled substances.
Justice Barrett asked the government’s attorney whether a person who took an Ambien pill that was prescribed to their spouse would be implicated under 18 U.S.C. § 922(g)(3). The government attorney responded that they would. The justice followed up by questioning how that scheme could comport with the dangerousness holding in Rahimi.
Later, driving home the sweeping nature of the 18 U.S.C. § 922(g)(3) prohibition, Justice Barrett stated, “Robitussin, Ambien, Tylenol with codeine, testosterone, Adderall… none of those drugs strike me as drugs for which it is obvious that a risk of violence would ensue.”
Doubts about the validity of the prohibition superseded the usual ideological divides. At one point Justice Ketanji Brown Jackson told the government’s attorney, “I think your argument sort of falls apart under the Bruen test.”
Justice Sonia Sotomayor challenged the government attorney’s reliance on habitual-drunkard laws by questioning how laws aimed at those so in the grips of severe alcohol use that they “couldn’t control it” and “weren’t responsible” would be akin to a law implicating “the marijuana user who uses it only one day a week and not in their home where the gun is?” Justice Sotomayor went on to add, “there was a definition and a situation with habitual alcoholic users that’s different than this.”
There are no guarantees in constitutional litigation, but most observers believe gun-rights supporters had the better day in court. A New York Times headline read, “Supreme Court Appears Skeptical of Law Banning Drug Users from Owning Guns.” The popular SCOTUSblog similarly reported, “Supreme Court skeptical of law banning drug users from possessing firearms.”
No matter the outcome, NRA will continue to work to ensure that the government cannot arbitrarily deprive any American of the right to arms and that Rahimi’s requirements of due process and proof of dangerousness are vigorously enforced.
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