Second Amendment

How the ACLU Started Defending the Second Amendment

The civil liberties group, which long maintained that there is no constitutional right to arms, is singing a different tune at the Supreme Court.

Jacob Sullum | 5.12.2026 12:00 PM

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(Illustration: Tobias Frere-Jones/ACLU/Andrei Victor Calangiu/Zimmytws/Dreamstime)

After a counterprotester was killed at the 2017 Unite the Right rally in Charlottesville, many members of the American Civil Liberties Union (ACLU) condemned its Virginia chapter for defending the First Amendment rights of the white supremacists who organized the demonstration. The critics included Waldo Jaquith, who expressed his displeasure by resigning from the ACLU of Virginia's board of directors.

In an interview with Slate's Dahlia Lithwick a few weeks later, Jaquith noted that "the ACLU gets to pick" which cases it takes. For example, he said, "you will not see the ACLU taking on any Second Amendment cases, as that is a part of the Bill of Rights that it prefers not to defend."

That seemed like a pretty sure bet at the time. The ACLU, after all, had long maintained that the Second Amendment does not guarantee an individual right to arms. Yet less than eight years later, the organization asked the Supreme Court to uphold that right by rejecting the Trump administration's attempt to prosecute Ali Hemani, a Texas cannabis consumer, for illegal gun possession.

Hemani admitted that he owned a pistol and that he smoked marijuana a few times a week. That would have been enough to convict him of violating 18 USC 922(g)(3), which makes it a felony for an "unlawful user" of "any controlled substance" to receive or possess a firearm. But Hemani's Supreme Court brief, which the ACLU joined, argues that "the Second Amendment forecloses the government's attempt" to prosecute him under that law.

"This is the first time that we have entered a case affirmatively on behalf of an individual making a Second Amendment claim," says Brandon Buskey, director of the ACLU's Criminal Law Reform Project and one of the attorneys listed in Hemani's brief. "Now that the Supreme Court has recognized this as a fundamental right, we see this as an important civil liberties issue."

The ACLU's position in United States v. Hemani puts it on the same side as the National Rifle Association (NRA). This is not the first time those two groups have teamed up: The ACLU, consistent with its historical agenda, defended the NRA's First Amendment rights in the 2024 case National Rifle Association v. Vullo. But this is the first time the two groups have united in defense of gun rights at the Supreme Court.

The ACLU's stance in Hemani is striking in light of what the organization has previously said about gun control and the Second Amendment. Even after District of Columbia v. Heller, the landmark 2008 case in which the Supreme Court recognized that the Second Amendment constrains government regulation of firearms, the ACLU continued to disagree.

"Given the reference to 'a well regulated Militia' and 'the security of a free State,' the ACLU has long taken the position that the Second Amendment protects a collective right rather than an individual right," the organization said in a statement that was still posted on its website as late as December 2023. "The ACLU disagrees with the Supreme Court's conclusion about the nature of the right protected by the Second Amendment."

Still, that post-Heller position statement added, some gun control laws "may raise civil liberties questions." That caveat helps explain the apparent contradiction between rejecting a constitutional right to own guns and defending that right at the Supreme Court.

Hemani raises issues that intersect with several traditional ACLU concerns, including due process, equal protection, and the unjust consequences of the war on drugs. And once the ACLU agreed to help represent Hemani, it was ethically bound to deploy all the available legal weapons on his behalf, including Second Amendment precedents that the organization's lawyers might otherwise consider dubious. But as Jaquith pointed out, "the ACLU gets to pick" its cases. Depending on your perspective, the fact that it picked this one is either puzzling or hopeful.

'They Bring a Certain Gravitas'

The case against Hemani began with the FBI's suspicions that he was involved in providing financial support to Iran's Islamic Revolutionary Guard Corps, a designated foreign terrorist organization. Although the FBI never found enough evidence to support a terrorism-related charge, its 2022 search of Hemani's home in Lewiston, Texas, discovered a Glock 19 pistol, about two ounces of marijuana, and less than a gram of cocaine. Hemani acknowledged that the gun and the marijuana were his, resulting in a charge under Section 922(g)(3), which is punishable by up to 15 years in prison.

The gun case never went to trial. A federal judge dismissed the charge in February 2024, and the U.S. Court of Appeals for the 5th Circuit upheld that decision in January 2025. That result, it said, was consistent with its August 2024 ruling in United States v. Connelly, which held that the Second Amendment bars Section 922(g)(3) prosecutions when they are based on nothing more than the elements specified in the statute.

In reaching that conclusion, the 5th Circuit applied the test established by the Supreme Court's 2022 ruling in New York State Rifle & Pistol Association v. Bruen, which requires the government to demonstrate that gun restrictions are "consistent with this Nation's historical tradition of firearm regulation." The Biden administration argued that Section 922(g)(3) was analogous to early laws that prohibited people from publicly carrying or firing guns while intoxicated. The 5th Circuit thought that comparison was inapt because those laws, which applied only in public and only when a gun owner was under the influence of alcohol, were narrowly targeted at the hazard posed by drunken gun handling.

Section 922(g)(3), by contrast, categorically disarms drug users, even in private and even when they are sober. It is analogous to decreeing that anyone who consumes alcohol may not own guns. While "our history and tradition may support some limits on a presently intoxicated person's right to carry a weapon," the 5th Circuit said in Connelly, "they do not support disarming a sober person based solely on past substance usage." It applied the same logic in Hemani's case, noting that "the Government concedes its evidence is deficient under Connelly's binding precedent and that this deficiency is dispositive."

The Trump administration, despite its avowed commitment to "protecting Second Amendment rights," wants the Supreme Court to reject the 5th Circuit's reasoning and reinstate the gun charge against Hemani. After the Court agreed to hear the case, Hemani's lawyers asked the ACLU to get involved.

"They bring a certain gravitas as one of the preeminent civil liberties organizations in the country," says Zachary Newland, one of Hemani's attorneys, whose Colorado practice often includes criminal cases that implicate the Second Amendment. Given the ACLU's history of "standing up to power and standing up for individual rights," he adds, a case that features "governmental overreach" and "abuse of prosecutorial discretion" seemed like a good fit.

Newland's law partner, David Boyer, says he........

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