Do you like to smoke marijuana? Do you also enjoy firearms? If so, the Supreme Court has great news for you.
On Thursday, the Supreme Court held in United States v. Hemani that the federal government may not categorically forbid an “unlawful user” of marijuana from possessing a gun. Hemani also has fairly broad implications for many drug users.
As Justice Neil Gorsuch notes in the majority opinion, the federal statute at issue in the case bars unlawful users of any “controlled substance” from possessing firearms. This law, he suggests, is far too broad, because it would rope in relatively innocuous drug users such as “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.”
So, under Hemani, it appears that a wide range of people who use prescription medications or other drugs in ways that violate the law may now own guns.
Gorsuch’s majority opinion does suggest that the government may ban some users of some drugs from possessing firearms if it can show that those drug users are likely to behave erratically or to otherwise endanger others. But all nine justices agreed that a categorical ban on gun possession by marijuana users goes too far. The justices split into a few different camps, however, on why the law at issue in Hemani is unconstitutional.
Most notably, Justice Ketanji Brown Jackson, in an opinion joined by Justice Sonia Sotomayor, calls for her Court to overrule New York Rifle & Pistol Association v. Bruen (2022), a chaotic decision that, as she writes, “is unworkable,” because it “imposes on judges the unfamiliar and difficult tasks of sifting through centuries-old evidence in order to answer ‘contested historical questions.’”
Bruen held that courts should determine whether a modern day gun law violates the Second Amendment by asking whether it is “relevantly similar” to a law that existed at the time when the Constitution was written. Lower courts have struggled to apply this framework, which exists only in Second Amendment cases, in large part because the Supreme Court has never articulated just how similar an old law must be to a new one for the new one to survive.
Indeed, the last time the Supreme Court decided a Second Amendment case, in United States v. Rahimi (2024), Jackson quoted a dozen different lower court opinions begging the justices to explain how, exactly, Bruen is supposed to work.
Gorsuch’s majority opinion in Hemani is unlikely to allay these concerns. Instead of clarifying Bruen, Gorsuch writes that “we have not yet had cause to ‘exhaustive[ly] survey’ the features that may render a modern law ‘relevantly similar’ to historical ones.” The historical analysis in his opinion narrowly focuses on laws governing intoxicants, and is unlikely to offer much guidance to judges hearing unrelated Second Amendment cases.
The Court’s entire approach to the Second Amendment remains a train wreck, in other words. But anyone troubled by that reality can now comfort themselves, legally, by squeezing off a few rounds at their local firing range, and then enjoying a nice fat doobie.
The people who wrote the Constitution drank a whole lot
Under Bruen, government lawyers who seek to defend a modern-day gun law must point to an older law that they think is similar to the new one. Judges — who are, again, operating under minimal guidance from the Supreme Court regarding how similar the two laws must be — must then determine if the new law is similar enough to the old law to allow the new law to be upheld.
In the Hemani case, the Justice Department compared the modern law — a categorical ban on gun possession by any “unlawful user” of marijuana — to founding era laws that imposed certain restrictions on “habitual drunkards.” These laws did not actually target gun ownership directly — few early American laws did, as US states did not even have police forces at the founding and thus lacked the ability to disarm people except in limited circumstances. But DOJ argued that, if the framers recognized that people who use intoxicants can be dangerous and need to have their liberties restricted, then modern-day lawmakers can do the same.
But, as Gorsuch persuasively argues, these habitual drunkard laws were much narrower than the modern-day law at issue in Hemani, which applies broadly to a wide range of drug users who are neither dangerous, nor even particularly impaired, because of their drug use.
Gorsuch writes that 18th- and 19th-century habitual drunkard laws applied only to people who drink so often that they become a burden on society and are often unable to manage their own affairs. Among other arguments, Gorsuch quotes Benjamin Rush, a physician and signer of the Declaration of Independence, who said that if he were an habitual drunkard, it would mean that “‘were a keg of rum in one corner of a room, and were a cannon constantly discharging balls between me and it, I could not refrain from passing before that cannon, in order to get at the rum.’”
Gorsuch also quotes 19th-century laws such as an Arkansas law defining an habitual drunkard as someone who is “incapable of conducting [his] own affairs,” and a Connecticut law that describes these individuals as someone who has “lost the power of self-control.” And he notes that the framers were unlikely to have supported more expansive restrictions on drinkers because many of them consumed copious amounts of alcohol. “Some say James Madison ‘consumed a pint of whiskey daily,’” Gorsuch writes.
An habitual drunkard, in other words, was someone with a very serious addiction that makes them potentially dangerous to themselves and others. That’s quite different from an occasional marijuana user who quietly smokes a joint in the comfort of their own home. As Gorsuch writes, the federal law in Hemani is so broad it may even apply to someone who uses “a mild gummy as a sleep aid a few times a week.”
So the gun law at issue in Hemani is pretty dissimilar to the “habitual drunkard” laws that the government pointed to in order to defend that law. Fair enough.
What Hemani does not do, however, is provide any framework explaining how similar modern-day gun laws generally must be to their 18th- or 19th-century counterparts in order to survive Second Amendment review. Bruen is likely to continue to baffle lower court judges, in large part because every single one of the Court’s Second Amendment cases rely on ad hoc reasoning about whether one law is sufficiently similar to another. There are few broader legal principles to be extracted from the Court’s historical analysis in any of these cases.
That said, Gorsuch’s opinion does contain one sentence that may give lower courts some guidance in future gun cases. Near the end of the opinion, he suggests that historical laws “usually provided some form of process before an individual lost any of his liberties, even temporarily.” So that does suggest that the government must provide individuals with a hearing before they can be stripped of their gun rights. The law at issue in Hemani fails this test, because it purports to remove someone’s right to own a gun the minute they become an illegal user of certain drugs.
This one line aside, however, Hemani contributes little to the broader project of clarifying which gun laws are permissible and which ones are forbidden. It is good news for people who enjoy both guns and marijuana. But it is terrible news for judges struggling to apply Bruen.
