On March 2, the U.S. Supreme Court held oral arguments in U.S. v Hemani, a case concerning the federal firearm prohibition on marijuana users. The case could finally provide clarity to the thorny, and unconstitutional, prohibition that has become increasingly salient as states have relaxed their marijuana prohibitions to allow for recreational or medical use.
In the NRA-supported case New York State Rifle & Pistol Association v. Bruen (2022), the Supreme Court held that for a gun control measure to be constitutional it must be “consistent with this Nation’s historical tradition of firearm regulation.” Later in U.S. v. Rahimi (2024), the Court held that a firearm prohibition that relied on a judicial finding of dangerousness was consistent with the Second Amendment.
Federal law, 18 U.S.C. 922(g), establishes the categories of individuals prohibited from possessing firearms. However, the law was drafted in an era with little Second Amendment jurisprudence, and its broad categories capture people who pose no danger to themselves or others alongside some who are legitimately dangerous.
For instance, 18 U.S.C. 922(g)(1) generally prohibits all felons from possessing firearms. Of course, violent felons should have their rights curtailed for some period (preferably by incarceration). But the prohibition also includes all nonviolent felons. This situation reached an absurdist conclusion in the U.S. Court of Appeals for the Seventh Circuit case Kanter v. Barr, which concerned the Second Amendment rights of an individual with a felony mail fraud conviction stemming from the almost comically nonviolent crime of selling Medicare non-compliant therapeutic shoe inserts.
18 U.S.C. 922(g)(3) prohibits firearm possession by anyone “who is an unlawful user of or addicted to any controlled substance.” This is similarly overbroad. Despite changes to state law, marijuana is still illegal under federal law and thus all those who use marijuana are captured by the statute.
Could there be individuals in the grips of crippling addiction that a court might find pose a genuine danger to themselves or other? Perhaps. But there is nothing inherently dangerous about those who occasionally use an intoxicant in compliance with state law or even under the supervision of a physician. This is particularly true when, as in Hemani’s case, the firearm giving rise to his prosecution was locked in a safe, not being used or brandished while he was under the influence.
To save the 18 U.S.C. 922(g)(3) firearm prohibition under the Bruen test, the federal government has pointed to historic habitual drunkard laws. There have been laws which allowed for some curbs on the rights (not necessarily gun rights) of individuals so in the throws of alcohol abuse that they posed a danger or were unable to manage their own affairs. But comparing these to a statute that contemplates the mere use, not crippling abuse, of an intoxicating substance is inapt.
NRA’s amicus brief in Hemani made clear that there is no tradition of disarming those who sometimes use intoxicating substances. The brief noted, “historical intoxication
laws regulated conduct: restricting the carrying, discharge, or purchase of firearms only while a person was intoxicated and only for as long as that condition lasted.” The record shows “situational restrictions rather than categorical disarmament.”
Further, the NRA brief explained the overbroad 18 U.S.C. 922(g)(3) prohibition “violates the historical rule that disarmament of individuals must be based on demonstrated danger.”
During oral arguments, justices from across the political spectrum appeared skeptical of the 18 U.S.C. 922(g)(3) prohibition.
In reference to the government’s reliance on habitual drunkard laws to survive the Bruen test, Justice Neil Gorsuch cited the nontrivial use of intoxicants during the founding era.
Justice Gorsuch remarked,
John Adams took a tankard of hard cider with his breakfast every day. James Madison reportedly drank a pint of whiskey every day. Thomas Jefferson said he wasn't much of a user of alcohol, he only had three or four glasses of wine a night, okay?
Are they all habitual drunkards who would be properly disarmed for life under your theory?”
Justice Amy Coney Barrett pointed out just how sweeping the 18 U.S.C. 922(g)(3) prohibition truly is, noting that it applies to all controlled substances, even those that most would find mundane.
Justice Barrett asked the government’s attorney,
[L]et's assume that someone takes their spouse's Ambien prescription. The spouse takes it too, lawfully, with the prescription, but then, you know, you take it unlawfully because you break into your spouse's Ambien jar.
So I take it that the one would fall under (g)(3) and the other who had the prescription would not, right?
The government’s attorney affirmed that this benign scenario would trigger the 18 U.S.C. 922(g)(3) prohibition.
Later questioning the justification for this scheme, Justice Barrett stated, “Robitussin, Ambien, Tylenol with codeine, testosterone, Adderall… none of those drugs strike me as drugs for which it is obvious that a risk of violence would ensue.
Biden-appointee Justice Kentanji Brown Jackson appeared to doubt the government’s arguments, as well, telling the government’s attorney “I think your argument sort of falls apart under the Bruen test.”
Obama-appointee Justice Sonia Sotomayor was skeptical that the type of chronic condition and misbehavior countenanced in habitual drunkard laws was at all akin to the 18 U.S.C. 922(g)(3) prohibition on unlawful use. She asked, how such laws could be analogous to “the marijuana user who uses it only one day a week and not in their home where the gun is?” adding, “there was a definition and a situation with habitual alcoholic users that's different than this.”
News outlets appeared to believe gun rights supporters had the better day in court.
Regardless of outcome, NRA will continue to work to bring the federal 18 U.S.C. 922(g) prohibited persons categories in line with the Second Amendment.
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