United States v. Hemani
"The government maintains that it may automatically strip Mr. Hemani of his Second Amendment right to possess a firearm because he uses marijuana a few times a week. More than that, because he possessed a gun despite this prohibition, the government insists it may imprison him for up to 15 years and disarm him for life." - Justice Gorsuch, opinion of the Court, pp. 18-19
Decision
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Opinion of the Court
The Facts
The FBI searched Ali Hemani's home and found marijuana, cocaine, and a pistol; Hemani admitted to smoking marijuana every other day. The Cocaine seems to be overlooked in the case. Hemani was indicted under 18 U.S.C. § 922(g)(3), which prohibits firearm possession by any 'unlawful user' of a controlled substance, even when not currently intoxicated. The charge not only carries a possible 15 year incarceration, but could bar him from gun possession for life.
Hemani challenged the statute as a violation of his second amendment rights.
The Issue
Whether 18 U.S.C. §922(g)(3), the federal statute that prohibits the possession of firearms by a person who "is an unlawful user of or addicted to any controlled substance," violates the Second Amendment as applied to respondent.
The Rules
It shall be unlawful for any person who is an unlawful user of or addicted to any controlled substance to possess any firearm or ammunition.
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed
Firearm regulations must be consistent with the Nation's historical tradition of firearm regulation to survive Second Amendment challenge.
A variety of laws, particularly at the state or local level, existed in the late 18th and early 19th century to control the behavior of "drunkards" and other socially problematic people. The government cites a number of these laws from around the colonies and states generally aimed at curbing "being a common drunk" and "vagrancy" among other behaviors.
The Application
The government argues that the historical tradition of disarming dangerous or irresponsible individuals justifies disarming all unlawful drug users. To make this argument, they compare laws about modern drug users to founding-era restrictions on intoxicated persons, invoking historical habitual drunkard laws as precedent.
Hemani argues that under Bruen's historical tradition framework, there is no founding-era analog for disarming people based on drug use.
First, 'Drug user' as a category didn't exist at the founding. And early restrictions on heavy users of alcohol are not analogous to modern drug laws.
Second, unlike domestic violence abusers (upheld in Rahimi), there is no specific, individualized nexus or crossover between drug use status and a demonstrated threat to others.
Argued March 2, 2026. During oral argument, the Court appeared skeptical of the government's broad reading of §922(g)(3). Several justices questioned whether the statute could survive Bruen's historical-tradition test given the lack of founding-era analogs for drug-based disarmament.
Justice Barrett repeatedly raised a hypothetical over whether her husband could lose his 2A rights for using her prescribed Ambien.
The 5th Cir. Invalidated § 922 (g)(3) because a plain reading of the statute applied the restriction to people who were not actually, or necessarily, impaired at the time that they possessed the firearm. The 5th Cir. Restricted the statute's application to defendants who were "intoxicated at the time." The government notes that this decision created a 3-way circuit split with the 7th cir. upholding the statute and the 8th striking it for different reasons. The 8th Cir. required a case-by-case evaluation on the defendant's "credible threat to the physical safety of others" before the statute could be applied.
The government relies on historical "Habitual Drunkard Laws" as their historical analogue. But these laws were not written to apply to just anyone who drank - that was essentially everyone at the time of the founding. Habitual drunkard laws targeted people who were incapable of managing their lives as a direct result of their excessive alcohol use. Someone you might actually call "a drunk," whether intoxicated at the moment or not. The government's attempt to map these onto a statute that covers any and all unlawful drug use, regardless of how the person behaves, fails the Bruen analogue test.
The government's reading of §922(g)(3) sweeps broadly, and covers anyone who uses any controlled substance, regardless of how much, how often, or whether they were actually impaired at the time they possessed a firearm. Under this theory, a person who uses marijuana once every few weeks in a state where it is legal is treated the same as a person with a severe addiction that impairs daily functioning.
Justice Barrett's concurrence in Rahimi warned that a regulation fails Bruen if it sweeps too broadly relative to its historical justification. The government's own analogues to habitual drunkard laws targeted people whose substance use made them demonstrably incapable of functioning. §922(g)(3) requires no such showing. It disarms based on status, not demonstrated incapacity.
Barrett's concern at oral argument about a person who uses their spouse's Ambien was directly cited in Gorsuch's opinion.
Barrett is building a body of concurrence law that increasingly constrains how Bruen can be applied, and may slowly lead to an overbreadth or narrow tailoring requirement as suggested in Jackson's concurrence. Watch for these two discussions to potentially merge over time.
The Conclusion
**The Judgment of the Fifth Circuit is affirmed.** The government says it can strip Mr. Hemani of his Second Amendment right because he uses marijuana, regardless of the amount or its effects on him, and regardless of his intended use of a firearm. Regular use of marijuana on its own is enough to invalidate a constitutional right.
To square their theory with the Second Amendment, the government contends that historic habitual drunkard laws demonstrate a traditional understanding by the drafters of the Bill of Rights that the Amendment would not have applied to drug users. But the historic laws the government cites fail every measure it asks us to consider. They targeted different kinds of people, for different reasons, and operated in different ways.
The government has failed to meet its burden to demonstrate that the prosecution of Mr. Hemani complies with the Second Amendment.
Why the Concurrences Matter
These concurrences reveal the competing visions of how modern Second Amendment doctrine should develop post-Bruen. The case extends post-Bruen Second Amendment expansion to federal prohibited-persons categories.
- Thomas - questions whether Congress even has Commerce Clause authority for this statute
- Jackson (with Sotomayor) - argues the Court should abandon Bruen's historical test and return to means-end scrutiny
- Alito (with Kagan) - concurs in judgment only; the historical analogues fail on their own terms
In a 9-0 decision, the concurrences are often the real story. Every justice agreed that Hemani won, and all but two put their signature on the Opinion of the Court, making it binding. But there was some disagreement as to why.
Thomas agrees with the Opinion, but thinks the original law may have overstepped congress's commerce power.
Jackson agrees with the Opinion but also thinks it may be time to abandon Bruen's Historical Analogue test.
Alito only concurred in the judgment, not the opinion. He says that applying the Bruen rule to facts of this case should be very simple and the majority is overcomplicating it. But he still agrees in the end result.
All three of those concurrences may suggest major shifts in how the court interprets law in the future.
Concurrence - Thomas, J.
The powers of Congress are constitutionally limited to an enumerated (listed out) power, generally found in Article I. 18 U.S.C. § 922(g)(3) is written using Congress's power to regulate interstate commerce - commerce that crosses state lines. To that end, the statute criminalizes possession of a firearm by an unlawful drug user "in or affecting commerce." And that final phrase has been read to include nearly every action imaginable.
Justice Thomas cites the difficulty of overcoming the tendency of courts to include under the umbrella of commerce nearly everything. He points out that SCOTUS has not granted a commerce clause challenge in 26 years, reinforcing to lower courts that the label means basically anything. Thomas says that the time may be ripe to revisit that.
Thomas concurs in the judgment and the court's opinion, but says that § 922(g)(3) "appears to exceed Congress's enumerated power to regulate interstate commerce." He believes it's time to reevaluate the breadth of the commerce clause - and that this may be an example of Congress overstepping its powers.
It may be worth considering that Thomas has been very reluctant to allow the court to rule on executive overreach lately, citing the court's limited role in determining the constitutional powers of the other branches. He appears to be less concerned about doing the same thing to the legislature here for some reason.
Concurrence - Jackson, J. (joined by Sotomayor, J.)
Bruen replaced a means-ends evaluation to assess the constitutionality of firearms regulations with a new "history and traditions" test. But this metric is vulnerable to inconsistent and arbitrary applications and leaves no room to consider the "real and present stakes of the problems facing our society today."
By contrast, the means-ends test has proven itself extremely workable and is "squarely within the competence of the courts." It's a flexible test that adjusts to changing circumstances and fact patterns and has been effectively applied to the First, Fifth, and Fourteenth Amendments. It would also be a more straightforward method of scrutinizing restrictions like the one in this case, presenting it in terms of three familiar questions:
- How severe is the burden?
- Does the government have a strong interest in imposing this firearms restriction?
- Is the law written as narrowly as necessary under the circumstances, or is it overly broad?
We should consider retiring the Bruen test and return to a more workable means-ends test.
Concurrence in Judgment - Alito, J. (joined by Kagan, J.)
Alito concurs only in the judgment, believing that the case fails on the mismatched historical analogues alone - the government's "Habitual Drunkard Laws" do not justify disarming modern drug users.
Full breakdown of Alito concurrence →No circuit court data for this case.
Case Analysis
Gorsuch Opening
The government maintains that **it may strip an individual of his Second Amendment right to bear arms if he uses marijuana**, even occasionally, even in the privacy of his own home, and even if the marijuana use is sanctioned by state law. The government says it may do all this because of the historical tradition of disarming those who are combative or dangerous when inebriated.
Can a pot smoker own a gun?
Can a pot smoker own a gun?
The Hemani case asks whether a federal statute that prohibits firearm possession by a person who "is an unlawful user of or addicted to any controlled substance" applies to an admitted user of marijuana.
In Hemani, a unanimous Supreme Court holds that the statute violates the Second Amendment, at least as applied in this case.
But the concurrences may hold some insights for people interested in modern Second Amendment law and maybe even some hints about the future of marijuana laws in this country.
Facts
The FBI searched Ali Hemani's home and found marijuana, cocaine, and a pistol; Hemani admitted to smoking marijuana every other day. The Cocaine seems to be overlooked in the case. Hemani was indicted under 18 U.S.C. § 922(g)(3), which prohibits firearm possession by any 'unlawful user' of a controlled substance, even when not currently intoxicated. The charge not only carries a possible 15 year incarceration, but could bar him from gun possession for life.
Hemani challenged the statute as a violation of his second amendment rights.
Issue
Whether 18 U.S.C. §922(g)(3), the federal statute that prohibits the possession of firearms by a person who "is an unlawful user of or addicted to any controlled substance," violates the Second Amendment as applied to respondent.
18 U.S.C. § 922(g)(3)
It shall be unlawful for any person who is an **unlawful user of** or addicted to **any controlled substance** to possess any firearm or ammunition.
Second Amendment
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed
Bruen. Historical-tradition test
Firearm regulations must be consistent with the Nation's **historical tradition of firearm regulation** to pass constitutional review
*New York State Rifle & Pistol Association v. Bruen* 597 U.S. 1 (2022)
Habitual Drunkard Laws
A variety of laws, particularly at the state or local level, existed in the late 18th and early 19th century to control the behavior of “drunkards” and other socially problematic people. The government cites a number of these laws from around the colonies and states generally aimed at curbing “being a common drunk” and “vagrancy” among other behaviors.
The Government's Position
The government argues that the **historical tradition** of disarming dangerous or irresponsible individuals justifies disarming all unlawful drug users. To make this argument, they compare laws about modern drug users to founding-era restrictions on intoxicated persons, invoking historical ***habitual drunkard laws*** as precedent.
Hemani's Position
Hemani argues that under *Bruen's* historical tradition framework, there is no founding-era analog for disarming people based **solely** on drug use.
First, 'Drug user' as a category didn't exist at the founding. And early restrictions on heavy users of alcohol are not analogous to modern drug laws.
Second, unlike domestic violence abusers (upheld in *Rahimi*), there is no specific, individualized nexus or crossover between drug use status and a demonstrated threat to others.
Circuit Split
The 5th Cir. Invalidated § 922 (g)(3) because a plain reading of the statute applied the restriction to people who were not actually, or necessarily, impaired at the time that they possessed the firearm. The 5th Cir. Restricted the statute’s application to defendants who were “intoxicated at the time.”
The government notes that this decision created a **3-way circuit** split with the 7th cir. upholding the statute and the 8th striking it for different reasons.
The 8th Cir. required a case-by-case evaluation on the defendant’s “credible threat to the physical safety of others” before the statute could be applied.
Supreme Court Oral Argument
Argued March 2, 2026. During oral argument, the Court appeared skeptical of the government's broad reading of §922(g)(3). Several justices questioned whether the statute could survive Bruen's historical-tradition test given the lack of founding-era analogs for drug-based disarmament.
Justice Barrett repeatedly raised a hypothetical over whether her husband could lose his 2A rights for using her prescribed Ambien.
Gorsuch’s Opinion of the Court
Historical Drunkard Laws
The government relies on historical "Habitual Drunkard Laws" as their historical analogue. But these laws were not written to apply to just anyone who drank. That was essentially everyone at the time of the founding. Habitual drunkard laws targeted people who were incapable of managing their lives as a direct result of their excessive alcohol use. Someone you might actually call "a drunk," whether intoxicated at the moment or not. The government's attempt to map these onto a statute that covers any and all unlawful drug use, regardless of how the person behaves, fails the Bruen analogue test.
The Government's Blanket Approach
The government's reading of §922(g)(3) sweeps broadly, and covers anyone who uses any controlled substance, regardless of how much, how often, or whether they were actually impaired at the time they possessed a firearm. Under this theory, a person who uses marijuana once every few weeks in a state where it is legal is treated the same as a person with a severe addiction that impairs daily functioning.
Overbreadth. Barrett's Framework
Justice Barrett's concurrence in Rahimi warned that a regulation fails Bruen if it sweeps too broadly relative to its historical justification. The government's own analogues to habitual drunkard laws targeted people whose substance use made them demonstrably incapable of functioning. §922(g)(3) requires no such showing. It disarms based on status, not demonstrated incapacity.
Barrett’s concern at oral argument about a person who uses their spouses ambien was directly cited in Gorsuch’s opinion.
Bryno Note: Barrett is building a body of concurrence law that increasingly constrains how Bruen can be applied, and may slowly lead to an overbreadth or narrow tailoring requirement as suggested in Jackson’s concurrence. Watch for these two discussions to potentially merge over time.
Conclusion
The Judgment of the Fifth Circuit is affirmed.
The government says it can strip Mr. Hemani of his Second Amendment right because he uses marijuana, regardless of the amount or its effects on him, and regardless of his intended use of a firearm. Regular use of marijuana on its own is enough to invalidate a constitutional right.
To square their theory with the Second Amendment, the government contends that historic habitual drunkard laws demonstrate a traditional understanding by the drafters of the Bill of Rights that the Amendment would not have applied to drug users. But the historic laws the government cites fail every measure it asks us to consider. They targeted different kinds of people, for different reasons, and operated in different ways.
The government has failed to meet its burden to demonstrate that the prosecution of Mr. Hemani complies with the Second Amendment.
Concurring Opinions
Why the Concurrences Matter
In a 9-0 decision, the concurrences are often the real story. Every justice agreed that Hemani won, and all but two put their signature on the Opinion of the Court, making it binding. But there was some disagreement as to why.
Thomas agrees with the Opinion, but thinks the original law may have overstepped congress’s commerce power.
Jackson agrees with the Opinion but also thinks it may be time to abandon Bruer’s Hisorical Analogue test.
Alito only concurred in the judgment, not the opinion. He says that applying the Bruen rule to facts of this case should be very simple and the majority is overcomplicating it. But he still agrees in the end *result*.
All three of those concurrences may suggest major shifts in how the court interprets law in the future.
Thomas Concurrence
Thomas agrees with the result but writes separately to emphasize that the historical-tradition test from Bruen should be applied strictly and narrowly. He is skeptical of the government's ability to expand historical analogues beyond their original scope.
Bryno Note: Watch the distinction Thomas draws between executive enforcement discretion and legislative power. Thomas is signaling that just because the executive branch chooses not to enforce marijuana laws doesn't mean Congress has authorized drug use. And that distinction matters for how we read §922(g)(3).
Jackson Concurrence
Jackson concurs but uses the case to raise broader questions about Bruen's historical-tradition framework itself:
1. How do we handle regulations targeting conduct that didn't exist at the founding? 2. What level of historical specificity should be required? 3. Is the historical-tradition test workable for lower courts?
These questions echo concerns Jackson has raised before and signal she may be building toward a formal challenge to the Bruen methodology.
Alito Concurrence in Judgment
Alito concurs in the judgment only. He agrees with the result but rejects the majority opinion, believing the case fails on the mismatched historical analogues alone. He would say no more.
Full breakdown: See the dedicated Alito Concurrence page for the complete analysis of his means-end scrutiny argument and the habitual drunkard law comparison.
Notes
Argued 2026-03-02. Added via SCOTUS OT2025 intake 2026-05-13.
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