Second Amendment

Jacob Sullum | 2.2.2026 1:45 PM

A federal law enacted in 1968, 177 years after the ratification of the Second Amendment, makes it a felony, currently punishable by up to 15 years in prison, for an "unlawful user" of "any controlled substance" to receive or possess a firearm. It therefore aims to disarm millions of Americans who pose no plausible threat to public safety, including cannabis consumers who live in states that have legalized marijuana.

That law, the U.S. Court of Appeals for the 5th Circuit held in the 2024 case United States v. Connelly, is unconstitutional as applied to defendants whose disqualification hinges on nothing more than "habitual or occasional drug use." In United States v. Hemani, which the U.S. Supreme Court is scheduled to hear on March 2, the Trump administration is asking the justices to reject the 5th Circuit's conclusion and reinstate the criminal case against a gun-owning marijuana user.

The government's defense of the law at issue in Hemani, 18 USC 922(g)(3), has provoked rejoinders from an ideologically diverse set of organizations, including the National Rifle Association (NRA), a bunch of other gun rights groups, two drug policy reform organizations, several think tanks, and the National Association of Criminal Defense Lawyers (NACDL). Those briefs, filed in a case that lies at the intersection of gun control and the war on drugs, illustrate the potential for alliances between right-leaning critics of the former and left-leaning critics of the latter—a subject I cover in my book Beyond Control.

Until a few years ago, the NRA was reluctant even to comment on the constitutionality of Section 922(g)(3) as applied to state-legal cannabis consumers. Now it is arguing that the statute is unconstitutional as applied to a cannabis consumer in Texas, where recreational use is still illegal. And although 18 states that have legalized recreational use are nevertheless urging the Supreme Court to allow that prosecution, the Drug Policy Alliance (DPA) and the National Organization for the Reform of Marijuana Laws (NORML) have joined the NRA in asking the justices to uphold the 5th Circuit's decision.

As you would expect, the briefs generally agree with the 5th Circuit that a categorical ban on gun possession by drug users is inconsistent with the Second Amendment. But they also offer other arguments against Section 922(g)(3), saying it is unconstitutionally vague, violates the Eighth Amendment's prohibition of status-based crimes, and exceeds the federal government's enumerated powers.

Under the Second Amendment test established by the Supreme Court's 2022 ruling in New York State Rifle & Pistol Association v. Bruen, Section 922(g)(3) passes muster only if the government can show it is "consistent with this Nation's historical tradition of firearm regulation." To make that case, the Trump administration relies primarily on the historical treatment of "habitual drunkards," who could be confined to workhouses as "vagrants" or civilly committed based on judicial determinations. As several of the briefs opposing the government's position note, that analogy is problematic for several reasons.

Since vagrancy and civil commitment laws "were not even 'firearm regulations' or 'gun laws,'" a brief from Gun Owners of America (GOA) argues, "they are irrelevant under this Court's precedents." And unlike Section 922(g)(3), those laws "demanded pre-deprivation procedural protections and individualized findings," the NACDL notes. "Process preceded prohibition. Before any restriction could attach, an official had to determine that a particular person was a habitual drunkard requiring commitment."

According to the government's brief, Section 922(g)(3) "burdens [the Second Amendment] right less severely than vagrancy laws and civil-commitment laws, which provided for drunkards to be confined in jails, workhouses, or asylums." Since drunkards historically could be imprisoned, the government argues, it follows that the "lesser" consequence of disarmament must be acceptable.

"This argument misapprehends the historical framework," the NACDL says. "The severity of historical punishments does not authorize modern restrictions that lack the features that made those punishments constitutionally tolerable. The 'greater' burden of imprisonment followed a judicial determination that the individual met the regulated category; it did not precede it."

The NACDL adds that the government's argument "proves too much" since "virtually any criminal offense—from vagrancy to public drunkenness to petty theft—[historically] was punishable by some form of confinement." According to the government's logic, it says, "Congress could categorically disarm anyone who commits any such offense, without individualized process, simply because the Founders permitted imprisonment for similar conduct."

Along similar lines, the NRA notes that the government's invocation of vagrancy laws "would........

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