Early last month, the Supreme Court heard United States v. Hemani, a challenge to 18 U.S. Code §922(g)(3). This is the prohibition on firearm possession by anyone “(W)ho is an unlawful user of or addicted to any controlled substance.”
The Federal Firearms Act of 1938 contained the first bans, which applied to those convicted of “crimes of violence.”
“The term ‘crime of violence’ means murder, manslaughter, rape, mayhem, kidnapping, burglary, housebreaking; assault with intent to kill, commit rape, or rob; assault with a dangerous weapon, or assault with intent to commit any offense punishable by imprisonment for more than one year.”
On April 27, 1961, Senate Bill 1750, “An Act to strengthen the Federal Firearms Act” was introduced.
“Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section 1 of the Federal Firearms Act, as amended (52 Stat. 1250; 15 U.S.C. 901-909), is further amended by repealing paragraph (6), by deleting the words “crime of violence” in paragraph (7) and inserting in lieu thereof the words “crime punishable by imprisonment for a term exceeding one year”, and by renumbering paragraphs (7) and (8) as paragraphs (6) and ( 7 ).
“SEC. 2. Section 2 of such Act is amended by deleting the words “crime of violence” in subsections ( d ), (e), and (f) and inserting in lieu thereof the words “crime punishable by imprisonment for a term exceeding one year”.
The bill passed the Senate on June 13, 1961; the House approved it on September 19; and became Public Law 87-342 on October 3, 1961.
For the first time, it didn’t matter whether an offense was described as violent or nonviolent, a felony or a misdemeanor. Even if the sentence was suspended or the judgment included no jail time, a lifetime ban was imposed.
In 1968, possession of marijuana was a felony virtually anywhere in the United States. The rise of the counterculture and the increasingly widespread use of marijuana, psychedelics like LSD, opiates, and other substances was a hot-button issue. It was no surprise to see a new class of prohibited persons added to the Gun Control Act of 1968.
Ironically, just about seven months after the GCA ’68 became effective, the Supreme Court declared the Marijuana Tax Act of 1937 unconstitutional. The case was Leary v. United States.
The Marijuana Tax Act was the federal government’s first law that specifically regulated marijuana. It was a revenue measure based on the National Firearms Act of 1934. The actual crimes were possession of untaxed weed and failing to have the required federal license.
After the Supreme Court’s decision, Congress repealed the law. It was replaced by the Controlled Substances Act of 1970.
Today, virtually all states allow for at least medicinal use of marijuana. Twenty-four states have legalized adult recreational use; the rest have reduced simple possession of small amounts to a misdemeanor.
This includes the federal government: Possession of a small amount of marijuana is now a misdemeanor with a maximum penalty of a year in jail. It no longer meets the standards set by the Federal Firearms Act of 1938 or the 1961 expansion. It also fails to meet the Fifth Amendment’s threshold for depriving a citizen of their civil liberties, including the right to keep and bear arms.
The Supreme Court’s own jurisprudence doesn’t support the status quo. The “history and tradition” test required under Bruen reveals there were no truly analogous laws during either the Founding or Reconstruction Eras.
Right now, the best outcome would be a favorable ruling in Hemani. Otherwise, we have to rely on an extremely reluctant Congress that must have watched Reefer Madness one too many times.
Even though the Drug Enforcement Agency is part of the Executive Branch, there’s not a lot the President can do: The DEA administrator, currently Terrence Cole, has the final word on which drugs go where.
President Trump issued Executive Order 14370 last December. However, it was more focused on research on the medical uses of marijuana and cannabidiols. The goal was to persuade the DEA to move marijuana from Schedule I to Schedule III. After four months, there have been no updates.
Hemani has forced the Supreme Court to confront a question Congress has avoided for decades: whether the government can keep treating marijuana users as a class of prohibited persons when the country itself no longer treats simple marijuana possession as the kind of grave offense that justifies stripping away a constitutional right.
Under Bruen, the government is supposed to point to a real historical tradition of comparable disarmament, not just modern policy preferences dressed up as public safety. If the Court rules the right way, it could finally put real limits on one of the most outdated and incoherent bans in federal gun law. If it does not, gun owners will be left waiting on a Congress and bureaucracy that have shown little urgency in fixing a problem they helped create.
Supreme Court Signals Trouble for Federal Law Disarming Regular Marijuana Users
About Bill Cawthon
Bill Cawthon first became a gun owner 55 years ago. He has been an active advocate for Americans’ civil liberties for more than a decade. He is the information director for the Second Amendment Society of Texas.
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