The Supreme Court did not say the government can’t keep guns away from dangerous people. It can still prosecute people who are intoxicated, genuinely dangerous, or whose drug use can be shown to make them a real risk.
What the Court did say is that the government can’t simply strip away a constitutional right because of broad assumptions or one-size-fits-all laws. If it wants to restrict the Second Amendment, it has to prove those restrictions fit our nation’s history and tradition of firearm regulation.
That’s the real significance of Hemani. It reinforces what Bruen already established: the Second Amendment isn’t a blank check for the government to regulate however it wants, but neither does it prevent reasonable laws aimed at genuinely dangerous conduct. Every gun restriction must be justified by history—not by politics, fear, or convenience.
In United States v. Hemani, the U.S. Supreme Court yesterday held that the federal government could not prosecute Ali Hemani under 18 U.S.C. § 922(g)(3)’s “unlawful user” provision solely because he used marijuana a few times a week while owning a firearm at home.
The decision is personally important to the many millions of Americans who use marijuana and who also possess firearms, while being careful never to mix the two. The Court has removed from these peaceable and responsible citizens the threat of a 15-year sentence in federal prison.
The decision is also important to the growing jurisprudential doctrine of the Second Amendment. Under the Court’s precedents in Bruen and Rahimi, new types of gun control laws can be justified by analogy to older, historic laws. Hemani teaches that courts should be rigorous when the government attempts to make far-fetched analogies to disarm huge categories of Americans who are not dangerous. We argued in an amicus brief in the case, along with NRA’s Joe Greenlee (the brief’s lead author) and Professor F. Lee Francis of Widener Law School, that someone who uses marijuana is not comparable to a nineteenth century “vagrant” who might be sent to a workhouse, nor to a “habitual drunkard” who had to be institutionalized after losing his mental capacity. The Court agreed.
The Issue
Section 922(g)(3) of the federal Gun Control Act makes it unlawful for anyone who is an “unlawful user of” or “addicted to” a controlled substance to possess a firearm. Because the Section incorporates the Controlled Substances Act (CSA) by reference, § 922(g)(3) reaches unlawful users of any drug on any federal schedule. This includes everything from heroin, on Schedule I, down to Robitussin AC, on Schedule V.
By David Kopel and George A. Macsary
