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Second Amendment

Fiddlers, Drunkards, Marijuana, and the Second Amendment

Supreme Court's Unanimous Decision in Hemani

David Kopel | 6.19.2026 2:07 PM

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. Ilya Somin and Stephen Halbrook wrote about the decision yesterday. In this post, coauthored with Wyoming law professor George Mocsary, I'd like to provide some additional perspective.

The Hemani 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.

As the Court pointed out, any illegal use triggers the 15-year federal felony, plus a lifetime ban on firearms possession. The use can be as minor as taking one of your wife's prescription Ambien pills when you have a headache, or using a friend's Adderall when cramming for an exam.

Hemani was prosecuted after a search of his family home for suspected terrorism-related activity. The search did not find evidence to charge him with terrorism, drug possession, or violent conduct. Rather, Hemani's indictment was based on his admission that he used marijuana about every other day. He was charged with possessing a firearm while being an unlawful user of a controlled substance. The government did not assert that Hemani was addicted, that he handled the gun while intoxicated, that he had misused a firearm, or that his marijuana use made him dangerous. Hemani challenged his prosecution on the ground that it was not consistent with the Second Amendment. The district court granted his motion to dismiss; the Fifth Circuit upheld the dismissal; the Court upheld the Fifth Circuit.

The Majority

The result was unanimous. Justice Gorsuch's opinion for the Court had seven votes, while Justices Alito and Kagan joined in a separate concurrence. The majority applied the familiar Bruen framework.

The government conceded that § 922(g)(3), as applied to Hemani, burdened conduct presumptively protected by the Second Amendment because it barred him from possessing any firearm for........

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