Drug Users’ Second Amendment Rights Now In the Supreme Court’s Crosshairs

The Supreme Court has agreed to hear United States v. Hemani, a challenge to the federal prohibition on gun possession by “unlawful users” of controlled substances under 18 U.S.C. §922(g)(3).

On paper, that sounds like a blockbuster Second Amendment showdown.

In practice, several close court-watchers think the gun-rights side may be walking into a trap.

Reason’s Jacob Sullum frames the stakes bluntly: the statute sweeps in millions of otherwise law-abiding Americans, including casual cannabis users in states where marijuana is legal, and it does so without any showing of intoxication at the time of possession. 

He recounts how the 5th Circuit has already narrowed the law’s reach in a string of cases, while the government insists that sweeping, categorical disarmament is justified by history.

Attorney William Kirk (Washington Gun Law) and attorney Mark W. Smith (Four Boxes Diner) go further. They warn that the Court’s acceptance – especially on the government’s petition – could produce a ruling that both upholds §922(g)(3) and loosens the Bruen framework in ways that spill into other gun cases.

It’s a big case, and it may not break the way many supporters hope.

What This Case Is (and Isn’t) About

Sullum explains that Ali Hemani, a Texas resident, was charged after FBI agents searching his family home found a Glock 19, less than a gram of cocaine, and about two ounces of marijuana. 

The search followed an unproven terrorism probe; those insinuations linger in the background, but Sullum emphasizes they are not the constitutional question the justices agreed to decide.

The question is far narrower and more fundamental: Can Congress disarm every “unlawful user” of any controlled substance, at all times, regardless of whether the person is actually intoxicated or misusing a firearm?

The 5th Circuit has already said “not as charged” in several cases. In Daniels, Connelly, and then Hemani itself, the court rejected prosecutions tied to past or occasional drug use without evidence the defendant was under the influence while possessing or handling a gun. 

The 8th Circuit in Cooper echoed that caution, rejecting disarmament “simply because [someone] belongs to a category of people, drug users,” as Sullum recounts.

The Solicitor General, D. John Sauer, asked the Supreme Court to reverse. Sullum notes that the government shifted its historical analogies away from “drunk-in-public-with-a-gun” laws (which are narrower) to a broader stew of founding-era restrictions on “habitual drunkards,” vagrancy rules, and surety statutes. 

Hemani’s counsel counters that none of those traditions involved categorical disarmament, and certainly not for people who occasionally consume a now-prohibited drug.

Why Some 2A Advocates Are Worried

Kirk’s take is stark: “Bad facts make bad law.” He walks through the government’s portrayal of Hemani – foreign ties, ugly rhetoric in the family orbit, drug use beyond marijuana – and argues that this is not a sympathetic vehicle to win a broad Second Amendment ruling. 

In his view, the Department of Justice picked a defendant whose backstory makes it easy for the Court to uphold the statute, even if the legal theory ultimately sweeps far beyond him.

Kirk also points out the docket reality. The Court has already taken two gun cases this term (including Wolford v. Lopez from Hawaii). 

With limited bandwidth, he worries the justices will resolve Hemani in a way that’s tidy for them but tough for gun-rights litigants – a narrow opinion that favors the government and leaves the lower courts wiggle room to keep upholding modern restrictions.

Smith, for his part, predicts the outcome with near-absolute confidence. He tells viewers that the Second Amendment “is going to lose” this case, not because the right is weak but because five votes likely see drug use plus gun possession as a straightforward “dangerousness” problem the government can address.

His bigger fear mirrors Kirk’s: how the Court gets there.

The Bruen Puzzle: Will the Court Rewrite the Test?

Everyone in this debate is speaking Bruen – the Supreme Court’s 2022 “text-and-history” test. Step one asks whether the law burdens conduct covered by the Second Amendment’s text. Step two asks whether the government can point to a well-established historical tradition of similar regulation.

Sullum highlights a key gap in the government’s history: at the founding, “unlawful users of controlled substances” did not exist. Opium, cannabis, and cocaine were widely available in patent medicines; national drug prohibition is a 20th-century invention. Historical laws punished active intoxication with arms in public, not membership in a broad status group.

Smith suspects the Court will finesse this by recasting §922(g)(3) as a temporary disarmament rule consistent with Rahimi (the 2024 case upholding disarmament of those under domestic violence restraining orders after due process). 

He sketches a likely through-line: the Court nods to surety laws (requiring bonds from those credibly threatening the peace), “going armed to the terror of the people” laws (punishing public weaponized intimidation), and the founding era’s handling of “lunatics” – all as narrow, condition-based limits.

Then comes the pivot: if a jury finds a person is an unlawful user or addicted and possessed a gun while in that condition, the government can disarm for that period. 

Quit the drugs, regain your rights. Under that frame, the Court can say §922(g)(3) is more like temporary, individualized dangerousness management than permanent status-based disarmament.

To Smith, that outcome is still a loss, but it’s less destructive than a wholesale rewrite of Bruen. His nightmare scenario is a decision that loosens the analogical standards, making it far easier for governments to defend modern laws by pointing to non-gun historical practices or vague social-order statutes.

The Human Fallout: Millions in the Crosshairs, Few Cases Filed

Sullum underscores the lopsided reality of §922(g)(3): surveys suggest tens of millions of Americans both own guns and use marijuana, mostly where state law allows it. 

Yet federal prosecutions for §922(g)(3) have historically been rare – around 120 per year across a decade – because the government typically only finds the violation when something else brings a person to their attention.

That creates a weird mix of chilling effect and selective enforcement. Many people are technically at risk but unlikely to be charged – until, suddenly, they are.

Sullum even notes the Hunter Biden episode to illustrate the arbitrariness: a high-profile defendant charged under related gun-and-drug theories who avoided prison after a presidential pardon – a resolution Sullum calls hypocritical. 

Whatever your politics, the point is clear: a statute this broad can become a prosecutor’s option, not a predictable rule people can order their lives around.

The Government’s Pitch – and Its Weak Spots

Sullum reports that the Solicitor General abandoned the earlier reliance on drunk-with-gun analogues and leaned instead on habitual drunkard rules, vagrancy, and sureties. 

Hemani’s team pushes back: no founding-era law disarmed “habitual drunkards” as a class, and vagrancy was about social control, not arms.

There’s also a text problem. As Sullum notes, the government keeps saying §922(g)(3) applies to “habitual” drug users, but that word isn’t in the statute. The law covers any “unlawful user”, and federal guidance has long treated recent or patterned use as enough. 

That fuzziness is how occasional marijuana use gets equated to persistent intoxication, which is the very leap the 5th and 8th Circuits resisted.

If the Supreme Court insists on tight findings – for example, specific proof that the defendant’s drug use and gun possession overlapped in time – it could preserve some of those safeguards even while affirming the statute.

Hope for a Small Loss, Not a Big One

It’s easy to see why gun-rights advocates are uneasy. Kirk is right that optics matter: Hemani is not the poster child anyone would have chosen to carry a national test case. Smith is right that five justices may be perfectly comfortable treating §922(g)(3) as a dangerousness proxy – and if that’s how they see it, the only fight left is how narrowly they write.

Here’s the hopeful path:

• The Court affirms §922(g)(3) only as applied to current unlawful users or those addicted, with clear, contemporaneous evidence tying use to possession.
• It rejects the government’s broader historical analogies and declines to bless status-based disarmament writ large.
• It reaffirms Bruen’s demand for close analogues and historical fit, avoiding any language that invites balancing tests back in through the side door.

That would be a loss on the scoreboard, but a survivable one. It would keep the pressure on Congress (and the states) to write precise laws that target demonstrable danger, not sprawling categories.

If, however, the opinion adopts a looser analogical method – treating general public-order laws as “close enough” to modern gun bans – expect that rationale to pop up everywhere, from hardware bans to carry restrictions. That’s the risk Smith urges everyone to focus on.

The Court has taken Hemani. Reason’s Jacob Sullum lays out why §922(g)(3) is breathtakingly broad and historically shaky; William Kirk warns that bad facts could yield bad law; Mark W. Smith predicts the government wins and urges the community to watch the methodology, not just the result.

For supporters hoping for a sweeping victory, temper expectations.

The more realistic goal now is damage control: push for a narrow ruling that keeps Bruen intact, cabins §922(g)(3) to true contemporaneous dangerousness, and leaves room to challenge overbroad applications in the cases – and with the plaintiffs – best suited to win.

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