SCOTUS Will Consider the Constitutionality of the Federal Ban on Gun Possession by Illegal Drug Users

The Supreme Court on Monday agreed to consider the constitutionality of the federal ban on gun possession by illegal drug users. The Trump administration is urging the justices to overturn a ruling in which the U.S. Court of Appeals for the 5th Circuit deemed prosecutions under that law inconsistent with the Second Amendment unless there is evidence that the defendant handled firearms while intoxicated. Contrary to what the 5th Circuit held, the government’s petition argues that categorically disarming drug users is “consistent with this Nation’s historical tradition of firearm regulation”—the constitutional test established by the Supreme Court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen.

The case, United States v. Hemani, involves a Texas man who was charged with 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. The defendant, Ali Hemani, was the subject of a terrorism investigation that included two searches of the Lewiston, Texas, home he shared with his parents. During the second search, in August 2022, FBI agents found a Glock 19 pistol that belonged to Hemani, along with less than a gram of cocaine and about two ounces of marijuana.

As Amel Ahmed explained in a Reason story about the case last year, the FBI was unable to substantiate its suspicion that Hemani, a native-born U.S. citizen whose parents are from Pakistan, was implicated in financial crimes involving Iran’s Islamic Revolutionary Guard Corps. The government’s petition nevertheless implies that Hemani is a dangerous character for reasons that extend beyond his recreational drug use. But that allegation is not relevant to the constitutional question raised by the Supreme Court case.

The law that Hemani was charged with violating applies to millions of Americans who pose no plausible threat to public safety, including cannabis consumers, even if they live in states that have legalized marijuana for medical or recreational use. The 5th Circuit first questioned the constitutionality of Section 922(g)(3) prosecutions in 2023, when it overturned the conviction of Patrick Darnell Daniels Jr., who was sentenced to nearly four years in federal prison after he was caught with two guns and the remains of a few joints during a routine traffic stop in Hancock County, Mississippi.

In arguing that Daniels’ prosecution met the Bruen test, the Biden administration cited early laws that prohibited people from publicly carrying or firing guns while intoxicated. The 5th Circuit did not think those laws were “relevantly similar” to Section 922(g)(3), since they applied only in public and only when people were under the influence of alcohol. “Under the government’s reasoning,” the appeals court observed, “Congress could ban gun possession by anyone who has multiple alcoholic drinks a week…based on the postbellum intoxicated carry laws. The analogical reasoning Bruen prescribed cannot stretch that far.”

Last year, the Supreme Court vacated the 5th Circuit’s decision in United States v. Daniels, instructing the appeals court to reconsider the case in light of United States v. Rahimi, a June 2024 decision that upheld a prosecution under 18 USC 922(g)(8), which bans gun possession by anyone subject to a domestic violence restraining order. But two months after Rahimi, the 5th Circuit reiterated its take on Section 922(g)(3) in United States v. Connelly, rejecting the prosecution of an El Paso cannabis consumer who was arrested when police discovered that she owned firearms.

The appeals court said it was unconstitutional to charge Paola Connelly under Section 922(g)(3) “based solely on her ‘habitual or occasional drug use.'” The 5th Circuit cited that decision in January, when it reaffirmed its conclusion that Daniels’ prosecution likewise was inconsistent with the Second Amendment. “Because the jury did not necessarily find that Daniels was presently or even recently engaged in unlawful drug use,” it said, “we reverse his conviction again and remand.”

Applying the same logic later that month, the 5th Circuit upheld a federal judge’s dismissal of the gun charge against Hemani. It noted that “the Government concedes its evidence is deficient under Connelly‘s binding precedent and that this deficiency is
dispositive.”

The following month, in United States v. Cooper, another case involving a marijuana user, the U.S. Court of Appeals for the 8th Circuit agreed that specific prosecutions under Section 922(g)(3) may violate the Second Amendment. It concluded that “nothing in our tradition allows disarmament simply because [someone] belongs to a category of people, drug users, that Congress has categorically deemed dangerous.”

The 5th Circuit and the 8th Circuit got it wrong, Solicitor General D. John Sauer argues in his Supreme Court petition. He complains that the 5th Circuit’s position “invalidates
Section 922(g)(3) in the lion’s share of its applications,” which he says is not justified under Bruen.

To support that claim, Sauer notably does not rely on early laws aimed at drunken gun handling, implicitly conceding that they are inapposite. Instead, he cites “founding-era restrictions on habitual drunkards,” who could be confined to workhouses as “vagrants” based on a determination by a justice of the peace.

As Hemani’s lawyers note, the government cites “no case, law, or statute from the founding era that disarms habitual drunkards or vagrants.” Instead, it “notes that habitual drunkards have been found incompetent to do business” or that “habitual drunkards could be committed or placed under guardianship.” The government’s discussion of vagrancy laws, Hemani’s response says, “lacks any nexus to fundamental rights of possession or carrying of firearms for ‘vagrants.'”

Another problem with Sauer’s analogy: He is arguing that all illegal drug users are comparable to “habitual drunkards,” regardless of how often or in what circumstances they consume psychoactive substances. Under his reasoning, an occasional marijuana user, or even a patient who uses cannabis for symptom relief in compliance with state law, is equivalent to someone who is drunk all or most of the time.

Sauer tries to bridge that gap by arguing that Section 922(g)(3) “disqualif[ies] only
habitual users of illegal drugs from possessing firearms.” As Hemani’s lawyers note, the government’s petition “uses the phrase ‘habitual drug users’ ten times,” even though the term is “found nowhere in the plain text” of the law. Contrary to what Sauer implies, the provision covers not only people who are “addicted to any controlled substance” but also any “unlawful user.”

Under federal regulations, the Justice Department notes, a gun owner or buyer violates Section 922(g)(3) if he has used an illegal drug “recently enough to indicate that the individual is actively engaged in such conduct.” Federal courts have said “a temporal nexus is required between the drug use and the firearm possession,” it says. “Courts now examine the ‘pattern and recency’ of the defendant’s drug use in determining if there is a temporal nexus between the possession of the firearm and drug use.” But they “do not require contemporaneous use.”

Sauer also cites “surety” laws, which required people to post bonds based on complaints that their possession of firearms would pose a threat to others. He says people subject to that judicial requirement included “common drunkards.” This purported historical analog likewise relies on the assumption that even occasional drug users fall into the same category. Furthermore, surety laws, unlike Section 922(g)(3), did not disarm people; they merely required a financial guarantee of good behavior.

Sauer glides over the point that there was no such thing as an “unlawful consumer” of a “controlled substance” until the 20th century. When the Second Amendment was ratified in 1791 and when the 14th Amendment made it binding on the states in 1868, people could legally consume currently prohibited drugs without a medical prescription. In the 19th century, drugs such as opium, cannabis, and cocaine were widely consumed in patent medicines that could be readily obtained over the counter or by mail. It seems highly doubtful that Americans of that era would have thought eschewing such products should be a condition for exercising the rights guaranteed by the Second Amendment. In this context, the restriction imposed by Section 922(g)(3) would have been incomprehensible.

Although Sauer does not explicitly acknowledge that difficulty, he argues that Section 922(g)(3) addresses a relatively new problem. He says “the practice of disarming drug users,” which did not begin at the state level until the 1920s and was not enacted by Congress until 1968, is “as old as legislative recognition of the drug problem itself.” That policy, he avers, “applies a general principle that formed part of the [Second] Amendment’s original meaning (legislatures may temporarily restrict the possession of firearms by certain categories of persons who pose a clear danger of misuse) to a modern problem that the founders did not directly confront (illegal drugs).”

The Founders “did not directly confront” the “problem” of “illegal drugs” because no such category existed. But they were demonstrably familiar with the potential hazards of combining alcoholic intoxication with gun possession, and they chose to address it with laws that were much more narrowly targeted than Section 922(g)(3). Those laws did not categorically disarm drinkers, which would be analogous to the statute at issue in this case. Rather, they applied to public conduct by people who were actively intoxicated. As the 5th Circuit noted in Connelly, “the government fails to identify any relevant Founding-era tradition or regulation disarming ordinary citizens who consumed alcohol.”

To reinforce his defense of Section 922(g)(3), Sauer trots out familiar claims that portray drug users as inherently dangerous. “Armed drug users endanger society in multiple ways,” he says. They have “a demonstrated propensity to violate the criminal law.” They “pose a danger of misusing firearms because of ‘drug-induced changes in physiological functions, cognitive ability, and mood.'” They “often ‘commit crime in order to obtain money to buy drugs’—and thus pose a danger of using firearms to facilitate such crime.” Furthermore, “violent crime may occur as part of the drug business or culture.” And “armed drug users endanger the police.”

Do these concerns make sense as applied to the average recreational marijuana user? What about state-registered patients who buy cannabis from state-licensed dispensaries? As the 8th Circuit noted in the 2024 case United States v. Veasley, the category covered by Section 922(g)(3) includes a wide range of individuals, many of whom cannot reasonably be described as public menaces. “Consider the 80-year-old grandmother who uses marijuana for a chronic medical condition and keeps a pistol tucked away for her own safety,” the appeals court said. “It is exceedingly unlikely she will pose a danger or induce terror in others.”

The remedy for such “marginal cases,” Sauer says, is to petition the attorney general for the restoration of gun rights under 18 USC 925(c), which authorizes relief for people who can demonstrate that they are not “likely to act in a manner dangerous to public safety.” He notes that Attorney General Pam Bondi has sought to revive that option, which for decades was unavailable thanks to a congressional spending rider.

While that initiative is welcome, the discretionary relief it offers is plainly inadequate if Section 922(g)(3) is unconstitutional “in the lion’s share of its applications,” which is how Sauer summarizes the implication of the 5th Circuit’s position. If the 5th Circuit is right, it is no answer to say that drug users can beg for the restoration of constitutional rights they should not have lost to begin with.

Sauer is similarly slippery in claiming that Section 922(g)(3) is a vital tool in preventing gun violence. The 5th Circuit’s decision “has significant practical consequences, given the frequency of Section 922(g) prosecutions,” he says. But those cases overwhelmingly involve illegal gun possession by people with felony records, not gun possession by illegal drug users.

Survey data suggest that something like 20 million American drug users (mostly cannabis consumers) own guns. Yet federal prosecutors filed charges under Section 922(g)(3) just 120 times a year, on average, from FY 2008 through FY 2017. So you have to be extremely unlucky to find yourself in that situation, which arises only when both your drug use and your gun ownership come to the government’s attention. That is what happened with Hunter Biden, who avoided prison thanks to his father’s hypocritical pardon.

It nevertheless remains true that millions of gun owners are violating Section 922(g)(3) right now, exposing them to stiff punishments that theoretically could total nearly half a century behind bars, depending on the overlapping charges that prosecutors decide to file. Although the Trump administration says that the situation is perfectly consistent with the constitutional right to keep and bear arms, the Supreme Court may see things differently.