Second Amendment

The 8th Circuit Lets the Government Retroactively Repair Unconstitutional Gun Cases Against Pot Smokers

A SCOTUS petition argues that the practice, which allows a judicial finding of dangerousness based on a preponderance of the evidence, violates the Fifth Amendment.

Jacob Sullum | 8.31.2026 4:50 PM

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Ali Hemani (left) and Alexander Ledvina (Photos: Ali Hemani/Mark Ledvina/Adam Parent/Dreamstime | Illustration: Fatima Ruiz)

Last June in United States v. Hemani, the Supreme Court unanimously held that Americans cannot be stripped of their Second Amendment rights or prosecuted for illegal gun possession simply because they use marijuana or other federally prohibited drugs. That decision complicated prosecutions under 18 USC 922(g)(3), which makes it a felony for an "unlawful user" of "any controlled substance" to receive or possess a firearm. It also opened the door to relief for people who had been previously convicted of violating that law based on nothing more than the statutory elements.

Hemani did not rule out Section 922(g)(3) charges when the government presents additional evidence that a defendant poses a danger to public safety. But prior to Hemani, prosecutors typically did not do that. The question now is how federal courts should deal with such prior convictions: Should they simply be vacated, or should the government get another chance to offer evidence that would meet Hemani's new requirements? A pending Supreme Court petition from Alexander Ledvina, an Iowa cannabis consumer who received a four-year prison sentence after he was convicted of violating Section 922(g)(3) in 2023, highlights a circuit split on that crucial question.

Ledvina's petition, which he wrote himself, stands out because the Trump administration seems to be taking it seriously. On August 3, Solicitor General D. John Sauer requested more time to submit a response, which is now due this Friday.

Ledvina, who had been incarcerated since his arrest in June 2023, was released from the federal prison in Memphis on July 6, thanks to the expanded "good conduct" and "earned" time credits authorized by the FIRST STEP Act of 2018. But he still has to complete three years of supervised release, and he still has a felony record that impairs his economic prospects and permanently disqualifies him from owning guns.

The U.S. Court of Appeals for the 8th Circuit, which includes Iowa, recognized the Second Amendment problems with Section 922(g)(3) even before Hemani. In the 2024 case United States v. Veasley, the appeals court rejected a facial challenge to that provision, saying the defendant had failed to show it was unconstitutional in all its applications. But last January in United States v. Cooper, the 8th Circuit said the defendant, who owned a Glock 20 pistol and admitted to smoking marijuana three or four times a week, should have a chance to argue that Section 922(g)(3) was unconstitutional as applied to him. It therefore vacated LaVance LeMarr Cooper's conviction and remanded the case for further consideration.

Ledvina, who at that point was still in prison, received a similar response the following month. In United States v. Ledvina, the 8th Circuit vacated his Section 922(g)(3) conviction and remanded the case to the trial court to resolve his as-applied challenge. But it left in place a related conviction under Section 924(a)(1)(A), which makes it a felony to knowingly make a false statement "with respect to the information" that a federally licensed gun dealer is required to record. That conviction hinged on the form that Ledvina filled out when he bought a pistol in July 2022: He checked "no" when asked whether he was an unlawful drug user.

Ledvina thinks the 8th Circuit should have vacated both convictions. But he also argues that the court's treatment of as-applied........

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