U.S. Supreme Court: Second Amendment Bars Prosecuting a Marijuana User for Keeping a Gun at Home Under § 922(g)(3)

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The United States Supreme Court has decided United States v. Hemani, 608 U.S. ___ (2026), holding that the government’s prosecution of a marijuana user for possessing a firearm in his own home under 18 U.S.C. § 922(g)(3) violated the Second Amendment. Section 922(g)(3) makes it a federal crime, punishable by up to fifteen years in prison, for anyone who is an “unlawful user of” or “addicted to” a controlled substance to possess a gun. Writing for a seven-Justice majority, Justice Gorsuch held that the government could not square that prosecution with the Nation’s historical tradition of firearm regulation. The Court affirmed the dismissal of the indictment against Ali Hemani, a Texas man who told federal agents he used marijuana about every other day.

The decision is an important one for anyone facing a federal gun charge tied to drug use. It confirms that the government cannot automatically strip a person of the right to keep a firearm at home based on nothing more than regular drug use, at least without showing something more. At the same time, the Court was careful to describe its holding as narrow, and it left several related questions open for another day.

The Facts of the Case

Ali Hemani is a dual citizen of the United States and Pakistan who was born in Texas and has lived most of his life in the Dallas area with his parents while working a stable job. In 2022, suspecting Mr. Hemani and his family of terrorism-related activities, the government searched the family home. Mr. Hemani cooperated throughout. He surrendered a gun he kept in the house, pointed agents to marijuana on the property, and agreed to an interview, during which he told agents that he used marijuana “about every other day.” After agents found cocaine in his parents’ closet, he claimed ownership of it as well, though he said his mother had hidden it from him and that he had not used any recently.

More than six months after the search, the government brought a single-count indictment. The charge had nothing to do with terrorism, which was the reason for the search, and nothing to do with the cocaine or any drug trafficking. Relying solely on Mr. Hemani’s admitted use of marijuana, the government charged him with knowingly possessing a gun in his home while being an “unlawful user” of a controlled substance. The government did not allege that he was a drug addict, did not contend that his drug use had ever made him a danger to himself or others, and did not claim he had done anything with the gun other than keep it in his home.

Motion to Dismiss and the Fifth Circuit Appeal

Mr. Hemani moved to dismiss the indictment, arguing that enforcing § 922(g)(3) against him violated the Second Amendment. The district court agreed and dismissed the charge. The Court of Appeals for the Fifth Circuit affirmed that dismissal, and the government asked the Supreme Court to review the case. The Court agreed to hear it and ultimately affirmed.

The Supreme Court’s Decision

The Court began with the framework it set out in New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U.S. 1 (2022), and refined in United States v. Rahimi, 602 U.S. 680 (2024). The Second Amendment protects the right of “all Americans” to keep and bear arms for self-defense. Once a law burdens conduct the Amendment’s text covers, the government bears the burden of showing that the law is “consistent with the Nation’s historical tradition of firearm regulation.” The government need not produce a “historical twin,” but it must identify historical laws that are “relevantly similar” to the modern regulation, looking in particular at two things the Court called the “why” and the “how” of the laws being compared.

The government conceded that § 922(g)(3) burdens protected conduct, so it had to carry that historical burden. To do so, it relied on what it called “habitual drunkard” laws from the founding era and the nineteenth century. These fell into three groups: vagrancy laws that allowed habitual drunkards to be confined in a workhouse or jailed; civil-commitment statutes that allowed courts to appoint guardians for habitual drunkards or commit them to asylums; and surety laws that let officials require a habitual drunkard to post a bond for his good behavior. The government argued that those laws were close enough to § 922(g)(3) to justify disarming any regular drug user.

The Court rejected the analogy on every measure the government asked it to consider. As Justice Gorsuch put it, the historical laws “targeted different kinds of people, did so for different reasons, and operated in different ways.”

Different People

The Court first found that the historical laws targeted a very different group. Around the founding, a “habitual drunkard” was not simply a regular drinker but someone who, as one court put it, “for any considerable part of his time [was] intoxicated to such a degree as to deprive him of his ordinary reasoning faculties.” Statutes commonly defined the term to require that a person drink to such excess that he was “incapable of conducting [his] own affairs” or had “lost the power of self-control.” The Court noted the “culture of copious drinking” in early America, observing that figures like John Adams, James Madison, George Washington, and Thomas Jefferson all drank regularly without being considered habitual drunkards. Those laws, the Court explained, reached people whose drinking left them “practically incapacitated and incapable of managing their affairs.”

Section 922(g)(3), by contrast, sweeps in anyone who regularly uses any amount of any controlled substance for anything other than its “prescribed purpose,” without any showing that the person is incapacitated or unable to manage his affairs. The Court observed that the government’s theory would reach not only Mr. Hemani but “a husband who regularly takes his wife’s prescription Ambien to sleep and a college student who routinely uses a friend’s Adderall to cram for exams.” The drug, the amount, and the effect all made no difference under the government’s reading. “To state the analogy,” the Court wrote, “is to expose its deficiency.”

Different Purposes

The Court next held that the historical laws served different ends than the public-safety purpose the government attributed to § 922(g)(3). Vagrancy laws generally targeted those who “did not meet the societal expectation of work” and sought to promote productivity and suppress vice, not to protect the public from a category of dangerous people. Civil-commitment laws were designed largely to protect habitual drunkards from themselves and to protect their families from financial ruin. And the surety-of-good-behavior laws the government invoked did not require any showing that a person posed a threat of violence; they sought to protect the community from “scandals” against “good morals.” The Court pointed out that the government had not relied on the surety-of-the-peace laws that had supported the domestic-violence statute upheld in Rahimi, because being a habitual drunkard alone was not usually enough to trigger those laws.

Different Operation

The Court also found a mismatch in how the laws worked. The historical laws generally provided some process before a person lost any liberty: a vagrant could ordinarily be confined only upon a conviction, a habitual drunkard could be given a guardian or committed only after proceedings before a probate court or similar body, and surety statutes required a proceeding before a justice of the peace before a bond could be ordered. Section 922(g)(3), on the government’s account, automatically strips a person of his right to keep a firearm the moment he becomes an unlawful user, with no pre-deprivation process at all. The Court acknowledged that a defendant gets a full criminal trial before he can be imprisoned, but explained that the disarmament itself happens automatically and without any prior hearing.

Doubts About the Statute’s Stated Purpose

Finally, the Court questioned whether § 922(g)(3) even serves the purpose the government claimed, that of disarming categorically dangerous people. Because the statute defines “controlled substance” by reference to the Controlled Substances Act, a law adopted to protect “the health and general welfare of the American people,” drugs can land on its schedules for reasons that have little to do with violence. The Court also pointed to the government’s own conduct: the Department of Justice has directed prosecutors to curtail enforcement against marijuana users, most states have legalized marijuana to some degree, and the government recently moved some marijuana products from Schedule I to Schedule III. Quoting then-Judge Barrett’s dissent in Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019), the Court warned that giving the government “broad power to designate any group as dangerous and thereby disqualify its members from having a gun” would risk allowing it to “quickly swallow” the Second Amendment. The Court affirmed the judgment of the Fifth Circuit.

What the Court Did Not Decide

The majority stressed that its decision is narrow. It did not address whether the government may disarm drug addicts or people who are presently intoxicated. It did not address other laws Congress might pass after finding that users of a particular drug pose a special risk of misusing firearms. It did not touch § 922(g)(1), which disarms people convicted of felonies. And it did not decide whether the government could prosecute someone under § 922(g)(3) with individualized proof that the person’s drug use makes him a danger to himself or others, or proof that a particular drug always renders its users dangerous.

Notably, under Pennsylvania law, individuals can be prosecuted for trying to buy a firearm when they have a medical marijuana card. That may now be unconstitutional. Those questions remain open.

The Concurring Opinions

Justice Thomas joined the majority in full and wrote separately to raise a different problem. In his view, § 922(g) likely exceeds Congress’s power under the Commerce Clause, because it criminalizes mere possession of a firearm based only on the fact that the gun once crossed state lines. He argued that lower courts have misread Scarborough v. United States and have given too much weight to the statute’s “jurisdictional hook,” and he urged the Court to revisit the issue in an appropriate case.

Justice Jackson, joined by Justice Sotomayor, also joined the majority but wrote to renew her criticism of the Bruen framework. She called the history-and-tradition test “unworkable” and argued that courts should return to means-end scrutiny, the approach that weighed the strength of the government’s interest against the burden on Second Amendment rights. She noted that she addressed only the mechanics of that test, not what result it would produce here.

Justice Alito, joined by Justice Kagan, concurred only in the judgment. He agreed that the government’s analogues were not “relevantly similar” to § 922(g)(3) as applied to Mr. Hemani, but he would have affirmed on that narrower as-applied ground alone rather than on the majority’s broader reasoning. He observed that “marijuana use today is like alcohol use at the founding,” widespread and increasingly tolerated, and that the government had not shown that an occasional user like Mr. Hemani is incapacitated in the way the historical drunkard laws required.

The Takeaway

Hemani is a significant win for the defense in federal gun cases. It rejects the government’s position that regular drug use, standing alone, is enough to disarm a person and expose him to a fifteen-year sentence for keeping a firearm. After this decision, the government should not be able to win a § 922(g)(3) prosecution simply by proving that a defendant uses marijuana or another controlled substance on a regular basis.

The limits of the decision matter just as much as the holding. The Court left open whether the government can still prosecute under § 922(g)(3) when it offers individualized proof that a defendant’s drug use makes him dangerous, and it did not disturb the felon-in-possession ban or the provision covering those who have been committed or adjudicated mentally ill. Defendants who are addicts, who were intoxicated while handling a gun, or who used drugs shown to cause dangerousness may still face real exposure. The practical lesson is that the facts of each case will drive the result, and counsel should press the government to prove not just drug use but the kind of dangerousness the Court found missing here. Justice Thomas’s separate opinion also signals that the broader constitutionality of § 922(g) under the Commerce Clause may draw renewed attention in future cases.

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