Supreme Court Makes It Clear There Is No Drug Exception to the Second Amendment

The Supreme Court on Thursday unanimously ruled that the government may not strip people of their Second Amendment rights or prosecute them for illegal gun possession simply because they are marijuana users. In United States v. Hemani, the Court held that neither policy is “consistent with this Nation’s historical tradition of firearm regulation,” the constitutional test established by its 2022 decision in New York State Rifle & Pistol Association v. Bruen.

Given the tenor of questions during oral argument in March, the result is not surprising. But the fact that the justices all agreed the government had failed to meet the Bruen test underlines the weakness of the Trump administration’s argument in favor of disarming cannabis consumers, which relied on a plainly inapt analogy to the historical treatment of “habitual drunkards.” The decision also reflects the blatant illogic of 18 USC 922(g)(3), which makes it a felony, punishable by up to 15 years in prison, for an “unlawful user” of “any controlled substance” to receive or possess a firearm.

The consensus is nevertheless striking given the Supreme Court’s history of facilitating the war on drugs by whittling away at constitutional restraints on searches and seizures. The Court’s deference to drug warriors has been so extensive that critics have long perceived a “drug exception” to the Fourth Amendment. But in Hemani, the Court makes it clear there is no drug exception to the Second Amendment.

The case involved Ali Hemani, a Texas man who was charged with violating Section 922(g)(3) based on two facts: He owned a pistol, and he admitted to using marijuana a few times a week. Although that would have been enough to convict him, the case never went to trial. A federal judge dismissed the charge on Second Amendment grounds in February 2024, and the U.S. Court of Appeals for the 5th Circuit upheld that decision in January 2025.

That result, the 5th Circuit 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. The Trump administration, despite its avowed commitment to “protecting Second Amendment rights,” asked the Supreme Court to reject the 5th Circuit’s reasoning in Connelly and reinstate the charge against Hemani.

The government’s lawyers may have hoped the circumstances of the house search that discovered Hemani’s gun and marijuana, which stemmed from an FBI terrorism investigation that went nowhere, would color the Court’s perception of him. If so, they badly miscalculated. While Justice Neil Gorsuch’s majority opinion mentions that the FBI “suspect[ed] Mr. Hemani and his family members of terrorism-related activities,” that detail does not figure in his analysis at all.

It is not hard to see why. The government “asks us to conclude that anyone who regularly uses marijuana is categorically violent and dangerous without any further showing,” Gorsuch notes. The Trump administration’s defense of Hemani’s prosecution did not entail any claim that he was an especially dangerous cannabis consumer, and the absence of any such allegation proved fatal to its case.

“Ali Hemani uses marijuana a few times a week,” Gorsuch notes. “That fact alone, the government says, means he is automatically banned from possessing a firearm under federal law. And because Mr. Hemani admits he owns a gun despite this ban, the government now seeks to prosecute him, imprison him for up to 15 years, and disarm him for life.” That last consequence flows from another gun law, 18 USC 922(g)(1), which bans firearm possession by anyone who has been convicted of a crime punishable by more than a year of incarceration.

In seeking to justify such severe penalties for a man with no history of violence, the Trump administration argued that Section 922(g)(3) resembles early laws that authorized confinement of “habitual drunkards” in jails, workhouses, or asylums. The justices had no trouble recognizing the fallaciousness of that comparison.

In the 18th and 19th centuries, a habitual drunkard was not simply someone who regularly consumed alcohol, even in amounts that today might be viewed as extreme. “Had habitual drunkard laws applied to those who simply drank regularly, many notable early Americans could have faced trouble,” Gorsuch notes. “John Adams took ‘a tankard of hard cider’ with his ‘daily breakfast.’ Some say James Madison ‘consumed a pint of whiskey daily.’ George Washington often drank three glasses of madeira in the evening—’not enough to be considered a heavy drinker in his day.'”

Gorsuch also cites the bar tab for Washington’s 1787 “farewell party” at City Tavern in Philadelphia. The 55 guests, he notes, “are said to have ordered 54 bottles of madeira, 60 bottles of wine, 8 bottles of ‘Old stock,’ 22 bottles of porter, 8 bottles of cider, 12 bottles of beer, and 7 large bowls of punch.”

Even the American Temperance Society viewed people who “drank 12 ounces of hard liquor daily” as merely “occasional drunkards,” Gorsuch notes. In that organization’s view, “it took 24 ounces” to qualify as a “confirmed drunkard.”

Given the “culture of copious drinking” in early America, Gorsuch says, it should be obvious that labeling someone a “habitual drunkard” required more. Historically, that category was limited to people whose drinking was so out of control that it seriously disrupted their lives. “The government’s historical laws targeted habitual drunkards not merely because they regularly used intoxicants, or even sometimes used them to excess,” Gorsuch writes. “Instead, those laws focused on habitual drunkards because their drinking rendered them practically incapacitated and incapable of managing their affairs.”

The Trump administration’s analogy between occasional or regular cannabis consumers and habitual drunkards, in other words, fails right out of the gate. “The habitual drunkard laws on which the government relies here differ dramatically from §922(g)(3)’s unlawful user provision on every single metric the government invites us to consider,” Gorsuch writes. “They targeted different kinds of people, did so for different purposes, and operated in different ways.”

The government argued that Section 922(g)(3) makes sense because it aims to protect the public from “unusually dangerous” people who commit “violent crime.” It claimed laws deployed against habitual drunkards served a similar purpose. Gorsuch disagrees.

The vagrancy laws cited by the government “targeted individuals who ‘did not meet the societal expectation of work,'” Gorsuch notes. “Laws like these might have sought to promote productivity and suppress any number of real or perceived vices.” But contrary to the government’s gloss, they were not aimed at a category of “unusually dangerous” people. Civil commitment laws likewise “did not seek to protect the public from violence so much as to protect habitual drunkards from themselves and their families from financial devastation,” Gorsuch writes.

The government also cited surety laws, which required people to post bonds that would be forfeited if they behaved badly. But those laws did not resemble Section 922(g)(3) either. “Under those laws, a judicial officer could impose a surety of good behavior on individuals who threatened a ‘scandal,'” Gorsuch notes. “A scandal could include anything from ‘haunting bawdy houses’ to ‘evesdropp[ing]’ to, yes, being a ‘common drunkar[d].'” Imposing a surety “did not normally require a showing that an individual posed a threat of violence.”

Gorsuch notes another important distinction: The purported historical analogs cited by the government all entailed some form of judicial review before people’s rights could be restricted. Section 922(g)(3), by contrast, “automatically divests an individual of his constitutional right to bear arms the moment he becomes an unlawful user and until he ends his drug use—all without any pre-deprivation process.”

Gorsuch also questions the government’s claim that Section 922(g)(3) is designed to prevent violence. He notes that it applies to any drug listed in one of the Controlled Substances Act’s five schedules, which are based on criteria, such as medical utility and abuse potential, that have nothing to do with violence.

In addition to Schedule I drugs, which are completely prohibited, controlled substances include a wide range of medications that can be used legally by prescription. But if you take one of those drugs without a doctor’s approval, you qualify as an “unlawful user.” As Gorsuch notes, that means “a husband who regularly takes his wife’s prescription Ambien to sleep” or “a college student who routinely uses a friend’s Adderall to cram for exams” thereby loses his Second Amendment rights under Section 922(g)(3).

“The drug involved makes no difference,” Gorsuch writes. Nor “does it matter how much an individual uses or the effects it has on him. That someone regularly uses any substance found on any of the CSA’s five schedules for anything other than its ‘prescribed purpose’ is enough. Without more, the government asks us to analogize all such persons to habitual drunkards. To state the analogy is to expose its deficiency.”

According to the government, “it doesn’t matter what controlled substance an individual uses, in what amounts he does so, or whether his drug use has ever made him a danger to himself or others,” Gorsuch writes. “It doesn’t even matter why he keeps a gun or how safely he does so.”

That policy is neither fair nor sensible. And according to a unanimous Supreme Court, it is not constitutional either.

The decision, like the 5th Circuit’s ruling in Connelly, leaves open the possibility that “the government could bring a prosecution under §922(g)(3) accompanied by individualized proof that the defendant’s use of marijuana (or any other drug) renders him a danger to himself or others,” Gorsuch notes. But it rules out any prosecution that does not include such evidence.

When the Trump administration asked the Supreme Court to take up this case, Solicitor General D. John Sauer warned that the 5th Circuit’s understanding of the Second Amendment “invalidates Section 922(g)(3) in the lion’s share of its applications.” Contrary to Sauer’s view, that’s a good thing.