“A unanimous U.S. Supreme Court just told the anti-gun movement and the U.S. Solicitor General that being a marijuana user alone provides no legal basis to strip an American of his fundamental Second Amendment right to keep and bear arms — and in doing so, the Court strengthened the Bruen pro-2A “text first, history second” methodology.” – Professor Mark W. Smith, Four Boxes Diner Host
The Supreme Court has unanimously held that being a regular marijuana user, without more, provides no basis for stripping an American of his Second Amendment right to keep and bear arms.
In United States v. Hemani, every member of the Court agreed that 18 U.S.C. § 922(g)(3) — the federal statute disarming “unlawful users” of controlled substances — cannot constitutionally be applied to Mr. Hemani, whose only offense was habitual marijuana use. A 9-0 judgment is rare in this corner of the law, and the federal government lost big time.
The U.S. Solicitor General, John Sauer, pressed this prosecution all the way to the Supreme Court over the loud objection of Second Amendment advocates and scholars. I was one of those 2A supporters who warned that the facts were bad and posed a significant risk to Second Amendment law.
Luckily for Team 2A, the gamble backfired, and Second Amendment jurisprudence is stronger for it.
The Nutshell Version
Strip away the doctrinal scaffolding, and Hemani is a reaffirmation of a basic principle developing in Second Amendment law: if the government wants to disarm someone, it must provide individualized evidence— in a legal proceeding — that the person poses a physical violent danger to himself or to others. An abstract statistical claim that a class of people tends toward bad behavior is insufficient. A regulatory inconvenience argument is not enough. A post-hoc historical analogy conjured up in litigation is not enough.
What the government needs is a genuine, well-established tradition of disarming people who pose the specific kind of threat it says that a particular defendant poses — and that tradition must be closely connected to the modern restriction it seeks to defend.
There is a second doctrinal takeaway hiding near the end of the opinion that deserves to be foregrounded: the Court made clear it will not accept the government’s litigation-driven attempts to recharacterize a statute enacted for one purpose as having been enacted for an entirely different purpose—in an attempt to shoehorn the modern law it into a historical tradition of firearm regulation. That kind of post-hoc rationalization is exactly the move that the government’s defense of § 922(g)(3) required, and the attempt was rejected by the Court.
A Case the Department of Justice Should Not Have Brought
Ali Hemani was convicted of possessing a firearm while being a regular marijuana user. Under § 922(g)(3), an “unlawful user of or addicted to any controlled substance” is a Prohibited Person who can face more than a decade in prison for the mere possession of a gun. The U.S. Court of Appeals, Fifth Circuit, held that disarming Mr. Hemani on those facts violated the Second Amendment, and the government — having lost — chose to take the fight upstairs to SCOTUS. I opposed that decision in the strongest terms.
Several former Justice Department lawyers now sit on the Supreme Court, and the bloc least sympathetic to drug offenders could have joined the Justices least sympathetic to the Second Amendment to manufacture an anti-gun precedent we would have lived with for a generation. Sauer pushed anyway. Amazingly and thankfully, he lost, and he lost unanimously.
That outcome deserves credit on its own terms. Bad facts here did not make bad law. When a Court faces an unsympathetic defendant — and a habitual marijuana user in possession of a firearm is not going to command a great deal of public sympathy — the temptation to cut corners on doctrine in order to reach the comfortable result is real. But the Court rejected the government’s position anyway. And, that is what principled adjudication looks like.
Who Won — and, More Important, How
There are two questions to ask of any Supreme Court decision: who won, and how. The second matters more, because the methodology is what binds the lower courts across the next thousand cases.
As an application of Bruen, the majority opinion is good — better than good, in places. The Court did not merely rule for Hemani; Justice Gorsuch, writing for the Court, restated the Bruen framework with a rigor that should end a debate festering since 2024. After United States v. Rahimi, 602 U.S. 680 (2024), a chorus on both sides insisted the Court had quietly loosened New York State Rifle & Pistol Association v. Bruen, 597 U.S. 1 (2022) — that the government now need only gesture at history and the courts would rubber-stamp the result. I argued the contrary in the Harvard Journal of Law & Public Policy, and Hemani vindicates my reading. With Hemani, the Court tightened the Bruen methodology.
On the specific historical analogues the government offered here — primarily laws targeting habitual drunkards — the Court engaged seriously with the “why.” It rejected the government’s very generalized claim that drug users, like drunkards, are dangerous as a class. More specifically, it examined what the historical drunkard laws were actually about and found that they were not primarily concerned with the danger drunkards posed. They were concerned with something more like mental incapacity — the inability to exercise sound judgment, to manage one’s affairs, to participate responsibly in civic life. That is a fundamentally different rationale than the dangerousness theory the government pressed in Hemani, and the Court refused to let the government paper over that gap. The historical analogue has to be closely connected to the modern restriction in purpose, not just in surface appearance.
Danger Is the Dividing Line
Again and again, the opinion returns to a single principle: America’s historical tradition of firearms regulation permits disarming a person only when he has been found to be a violent danger to himself or others. Not a danger to “democracy,” not a regulatory inconvenience — a physical, violent danger, established through some legal formal process.
That last point is where the Court emphasizes process. The opinion draws a sharp line between § 922(g)(3) and the provisions that survive precisely because they demand process before the right is lost:
“Certain other provisions of section 922 — such as subsection (1), disarming convicted felons, and subsection (4), disarming any person adjudicated as a mental defective or committed to a mental institution — involve some manner of pre-deprivation process before an individual’s Second Amendment rights are lost. For that reason they differ from section (g)(3) here, and nothing in our opinion should be taken to cast doubt upon them.”
“Pre-deprivation process.” Read those words carefully.
The Court places substantial weight on the availability of pre-deprivation hearings under the historical habitual drunkard laws — and their absence under § 922(g)(3) — as part of what makes the modern statute constitutionally deficient. I will note, in fairness to the government, that this argument has some tension at its edges: if the disqualifying feature of § 922(g)(3) is simply that one routinely uses any amount of a controlled substance unlawfully, and if that were itself a legitimate basis for disqualification, it is not obvious what pre-deprivation process would look like. What hearing establishes that you regularly smoked marijuana? That said, the Court’s point stands as a structural matter: the historical analogues that survived involved some individualized legal determination before the right was extinguished, and this statute does not.
Those words are also aimed squarely at red-flag regimes that confiscate firearms before any finding of dangerousness. And Justice Gorsuch closed the historical escape hatch on the 1791/1868 question:
“As in Bruen, we do not need to decide today whether courts should primarily rely on the prevailing understanding of an individual right when the Fourteenth Amendment was ratified in 1868 or when the Bill of Rights was ratified in 1791. For reasons explored below, the government cannot establish that the Second Amendment at either point in time permitted anything like its prosecution here.”
Either date, the government loses. There is no tradition of disarming people merely for using an intoxicating substance.
“All Americans” and a Signal on the AR-15 Fight
Two further passages from the opinion deserve attention. The Court wrote that the Second Amendment secures the rights of “all Americans” — language I do not read as accidental. It quietly forecloses the fringe argument that illegal aliens belong to “the people” of the Second Amendment, a theory that was never going to command five votes. And a concurrence by Justice Jackson, joined by Justice Sotomayor, is revealing for what it omits. They register their disagreement with Bruen’s methodology, yet say not a word against District of Columbia v. Heller, 554 U.S. 570 (2008) — the decision protecting arms “in common use” and casting out only those that are “dangerous and unusual.” Even the Court’s two most skeptical members left Heller untouched. For the AR-15 cases now climbing toward review, that silence is a tell.
What Hemani Does Not Decide — And What That Means
This is Hemani’s most important caveat, and it deserves honest treatment: this decision is much more in line with Rahimi as simply an application of Bruen than it is a case that breaks new doctrinal ground. The Court was careful to cabin its holding. In footnote 3, it declines once again to resolve whether 1791 or 1868 is the controlling historical period. In footnote 6, it expressly cautions that its conclusions about § 922(g)(3) should not be read to imply any problem with § 922(g)(1) or (g)(4), because those provisions involve pre-deprivation hearings. And at page 18 of the opinion, the Court pointedly leaves open the possibility that other methods of disarmament may be constitutional — particularly for people who use far more dangerous drugs than Mr. Hemani did.
The Bottom Line
So where does this leave us? I see no path by which the Supreme Court that rules 9-0 in Hemani, but then turns around and upholds Hawaii’s no-carry default rule in Wolford v. Lopez. We may well take two Second Amendment victories from this term. But the bigger lesson is structural. The government built this case to test the limits of Bruen and Rahimi, and the Court answered by reinforcing both in a gun-rights friendly way.
It refused to accept surface-level historical analogues. It refused to let the government recharacterize statutes after the fact to manufacture a historical fit. It demanded individualized process before rights are extinguished. And it did all of this unanimously.
To conclude, amazingly bad facts here did not make bad law. Every lawful gun owner in America woke up today with a stronger right than he held yesterday, and every pro-Second Amendment lawyer litigating the next case now has a unanimous opinion to cite. In short, a great day for the Second Amendment.
About Mark W Smith
Constitutional attorney and bestselling author Mark W. Smith hosts the Four Boxes Diner Second Amendment channel on Youtube and Rumble; is a member of the U.S. Supreme Court Bar; and his Second Amendment scholarship has been cited by many attorneys and judges, including by attorneys in legal briefs submitted to the U.S. Supreme Court. Professor Smith’s most recent book is ISRAEL DISARMED: What the October 7 Attack Teaches Americans about the Right to Bear Arms and he has lectured at Harvard Law School, Yale Law School, Princeton University, the Wharton School at U. Penn, and Oxford University. He is a frequent speaker at the Federalist Society’s Annual National Lawyers Convention in Washington, D.C.
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