By Britt Houston Lindsey
Chief Appellate Prosecutor in Taylor County
The future has turned out much differently from what I was led to believe as a kid. Telephones that we can carry in our pockets actually happened (it was a nice surprise), but I’m frankly disappointed that commercial space travel and vacations on the moon haven’t gone down like I was told they would.
One thing that I didn’t see coming was an opinion of the U.S. Supreme Court calmly discussing statistics of just how commonplace marijuana use has become. But here we are.
The case for this issue’s column, United States v. Hemani,[1] involves the federal firearm possession statute as it applies to a regular user of marijuana, and in college I think I was the only person I knew who didn’t indulge. As a prosecutor and an appellate attorney, I have never had fun, or been fun, a single day in my life. Nevertheless, Hemani is a U.S. Supreme Court opinion that will make every firearm-owning marijuana enthusiast I went to college with very happy.
Background
Ali Danial Hemani, a dual citizen of the United States and Pakistan, was suspected by the FBI (Federal Bureau of Investigation) of connections with the Iranian Revolutionary Guard Corps, which was designated a foreign terrorist organization (FTO) by the U.S. State Department. The FBI obtained a search warrant for his home and Hemani was cooperative, directing the agents to a Glock 9-mm pistol and 60 grams of marijuana. Hemani also consented to an interview in which he told the agents that he used marijuana “about every other day.”
About six months after the search, he was indicted in the Eastern District of Texas under 18 U.S.C. §922(g)(3), which restricts firearms possession for anyone who is “an unlawful user of or addicted to any controlled substance.” His indictment relied on the unlawful user prong rather than the “addicted to” prong. While his case was pending in district court, the United States Fifth Circuit issued an opinion in United States v. Daniels,[2] holding that §922(g)(3) was unconstitutional under New York State Rifle & Pistol Ass’n v. Bruen[3] as applied to a non-intoxicated individual based solely on a history of drug use. Hemani’s motion to dismiss the indictment was granted, the Fifth Circuit affirmed, and the United States Supreme Court granted certiorari.
Arguments before the Court
In the U.S. Supreme Court, the U.S. Solicitor General argued that §922(g)(3) has historical analogues under Bruen in the form of Founding-era “habitual drunkard” laws: vagrancy laws restraining the freedoms of “common drunkards,” civil commitment laws committing “habitual drunkards” to asylums or placing them under guardianships, and surety laws that imposed temporary restrictions on drunkards’ rights, including firearm ownership. Although vagrancy and civil commitment laws did not specifically prohibit the possession of firearms, the government noted that the Court recently held in United States v. Rahimi that “if imprisonment was permissible to respond” to the habitual use of intoxicating substances at the Founding, “then the lesser restriction of temporary disarmament” … “is also permissible.”[4]
Hemani responded with two arguments: that the “unlawful user” prong of §922(g)(3) was unconstitutionally vague and that the Second Amendment barred the government from applying §922(g)(3) to him. As to the “void for vagueness” argument, Hemani pointed out the government’s claim that the statute applies only to “habitual users” is unhelpful because the statute gives no guidance as to how often one must use the controlled substance, how much one uses, whether it matters what the substance is, and so on. Hemani cited the opinions of lower courts as evidence of the disarray surrounding attempts to define the statutory term and said that none of the approaches are grounded in the text of the statute; rather, they are “judicially created” efforts to provide fair notice of the conduct punished that Congress failed to provide.
The U.S. Solicitor General responded that Hemani’s “void for vagueness” claim was procedurally barred because it was not raised by or addressed in the lower court, Hemani did not raise it in his brief in opposition, and the Court had not granted certiorari on it. Even if properly raised, every federal circuit that has considered a vagueness challenge has rejected it.[5]
Regarding the Second Amendment, Hemani argued that “habitual drunkards” and regular users of marijuana are not analogous, observing that early legislatures prohibited carry or use of a firearm while intoxicated but did not prohibit anyone who regularly consumed alcohol from owning a firearm. He continued that “habitual drunkards” as a category closely analogous to “habitual drug users” was fundamentally flawed, as mere evidence that someone consumes marijuana a few times a week with no other information about time spent using, amount used, or circumstances when used does not render the person analogous to a “habitual drunkard.” He argued that §922(g)(3) cannot be justified by historical analogue when it is considered that almost all Americans regularly consumed some form of alcohol at the time of the Founding, and that some studies now indicate that there are more regular users of marijuana than regular users of alcohol.
SCOTUS oral argument
At the March 2, 2026, oral argument, Chief Justice Roberts and Justice Alito both expressed concern over courts making individualized determinations about drug use and disarmament, such as the person’s dangerousness, how much has used, the concentration, the degree that daily functioning was impaired, etc., and asked whether the courts had a role in reweighing the determinations already made by Congress and the Executive in scheduling drugs under the Controlled Substances Act. Alito indicated that he believed Congress had already made the determination that scheduled drugs were a basis for disarmament in enacting §922(g)(3) and cross referencing the Act.
Justice Kagan appeared skeptical of this view, suggesting that the decisions made when scheduling drugs under the Act were not necessarily dependent on whether the user is dangerous when using the substance. Justice Barrett appeared to agree with Roberts and Alito that legislatures may make categorical judgments, but she also seemed receptive to Kagan’s view that the Controlled Substances Act did not reflect legislative judgments about whether each scheduled drug would make someone dangerous with a firearm.
Justice Sotomayor, Justice Kavanaugh, and Justice Thomas all questioned the breadth and applicability of the historical traditions cited by the government. Justice Sotomayor suggested that habitual drunkard laws were not about frequency of use, but rather how the substance impaired that person’s functioning in society (she was also the only justice to address Hemani’s “void for vagueness” argument). Justice Thomas questioned whether vagrancy laws and the like were more in line with public policy than public safety, and Justice Kavanaugh appeared to think that historical drunkard laws were more directed toward addicts than regular users.
As the judges saw it
The opinion of the Court issued on June 18 unanimously affirming the Fifth Circuit in a 9–0 ruling. Writing for the Court, Justice Gorsuch begins by retracing the requirements of Bruen and Rahimi: The Second Amendment was designed to codify and guard a pre-existing individual right, and any modern regulation of that right must have a pre-existing “relevantly similar” parallel. Although the Court had not yet exhaustively examined the features that make a modern regulation “relatively similar” to a historical counterpart, Justice Gorsuch states that the Court had identified two that he refers to as the “why” and “how”: “The more closely a contemporary law mirrors a well-established historical analogue in purpose and operation, the more likely it is to be upheld. Conversely, the more a modern law diverges from traditional laws in purpose and operation, the less likely it is to survive review.” On that standard the Court found that the historical habitual drunkard laws “differ dramatically from §922(g)(3)’s unlawful user provision on every single metric the government invites us to consider: They targeted different kinds of people, did so for different purposes, and operated in different ways.”
First, a habitual drunkard at the time of the Founding and for decades after was someone “who for any considerable part of his time [was] intoxicated to such a degree as to deprive him of his ordinary reasoning faculties,” which one court described a “man who [was] intoxicated or drunk one-half his time” and which a signer of the Declaration of Independence colorfully described in a medical treatise as a man who would walk through cannon fire to get to a keg of rum.[6] Noting just how many early Americans drank alcohol and how much, Justice Gorsuch traces through the drinking habits of Adams (tankard of hard cider at breakfast), Madison (a pint of whiskey daily, but he recommended wine), Washington (three glasses of madeira in the evening), and Jefferson (three or four glasses of wine at dinner), and observes that if habitual drunkard laws applied to those who simply drank regularly, we would have disarmed many of the Founders.[7] Habitual drunkard laws accordingly applied to those who drank not just frequently or even to excess on occasion, but to those whose drinking rendered them practically incapacitated and incapable of managing their affairs. There was no evidence that Hemani’s marijuana use reached that level: Although Hemani stated he used every other day, there was no evidence as to how much, what potency, or that it rendered him unable to manage his affairs or was a risk to his family.
Justice Gorsuch goes on to observe that the government’s argument that §922(g)(3) disarms unlawful drug users to protect the public from “unusually dangerous” individuals who will “misuse … firearms” to commit “violent crime[s]” mischaracterizes the purposes of the vagrancy, civil commitment, and surety laws that the government cites. Vagrancy laws were directed at those who didn’t meet the societal expectations of work, and civil commitment laws were not so much directed at protecting the public from violence but rather protecting the habitual drunkard and his family from financial ruin. “Surety of the peace” laws were found to be a proper historical analogue in Rahimi, which dealt with possession of firearms by persons subject to domestic violence restraining orders under §922(g)(8), but merely being a habitual drunkard wouldn’t warrant a surety of the peace.
These laws also fail the “how” test, as they generally followed some sort of process before the deprivation, whereas §922(g)(3) automatically deprives the user of his Second Amendment right at the moment he begins using.
This returns Justice Gorsuch to the “why” problem with the government’s argument. §922(g)(3)’s unlawful user provision purports to disarm individuals who are, as a categorically “violen[t]” and “unusually dangerous,” but echoing Justice Kagan’s questioning during oral argument, he observes that a drug’s inclusion in the Controlled Substances Act may be for reasons of public health rather than their propensity to induce violence. Although the Court did not question that sometimes a person’s unlawful use of marijuana (or any drug) could render them dangerous, it was unwilling to “conclude that anyone who regularly uses marijuana is categorically violent and dangerous without any further showing.”
Justice Thomas concurred and joined with the opinion in full, but he wrote separately to address a different concern not actually raised by the parties: whether the criminal penalties in 18 U. S. C. §922(g) as a whole can be justified under the Commerce Clause in the first place. Justice Thomas reaffirmed his long-held belief first articulated in his concurrence in U.S. v. Lopez[8] that the Commerce Clause gives Congress “no power to regulate activities wholly separate from business, such as gun possession.” He argued that both the Court and the lower courts should revisit the constitutionality of §922(g).
Justice Jackson also concurred, joined by Judge Sotomayor. Just as Justice Jackson did in Rahimi, she found that the Court’s opinion correctly applied the standard articulated in Bruen but wrote separately to express her disagreement with Bruen. She would return to the pre-Bruen “means-end scrutiny” approach, which she wryly noted the majority opinion was still utilizing in a backward way. She again noted, as she did in Rahimi, that Bruen provides no framework for the lower courts to analyze the justification and operation of the modern regulation and historical analogue and repeated Justice Sotomayor’s dissenting concerns in Rahimi that the Bruen standard is divorced from modern realities.
Justice Alito also concurred in the judgment, joined by Justice Kagan, and appeared to lean more heavily on the “as applied” nature of the case in respect to this particular defendant. Justice Alito agreed with the Court that habitual drunkard laws were not “relatively similar” as applied to Hemani but would affirm on a different ground. As Justice Gorsuch explained, habitual drunkard laws did not allow the disarmament of those who “regularly used intoxicants” or even those who “sometimes used them to excess,” but instead only disarmed those whose intoxicant use “rendered them practically incapacitated and incapable of managing their affairs.” In Hemani’s case we only know the frequency of his use was “about every other day” but nothing about how much he used, the strength of the marijuana he used, how many times he used it in a day, the time of day when he used it, where he used it, or the degree to which this use affected his judgment and daily functioning. Justice Alito held that those historical analogues were too dissimilar to the allegations against Hemani to justify the application of §922(g)(3) to his case, and because that was sufficient to affirm, he would have gone no further in the analysis.
The takeaway
I was slightly surprised when the opinion was issued from a unanimous Court, but I really shouldn’t have been. The Court has always been skeptical of legislation and regulation that would categorically disarm large swaths of people. Gorsuch quotes the dissenting opinion of Justice Barrett to this effect in the pre-Bruen case Kanter v. Barr, made when she was still a judge of the U.S. Seventh Circuit: “The government could quickly swallow the right if it had broad power to designate any group as dangerous and thereby disqualify its members from having a gun.”[9]
As to how it affects us down here in the trenches, you’ll be relieved to hear that Hemani does not stand for the proposition that one may carry a firearm when one is stoned out of one’s gourd. The holding of Hemani is pretty straightforward: There is no historical analogue to modern regulations on firearm ownership that would restrict someone from possessing a gun at home solely because he or she regularly uses marijuana, with no showing of incapacitation. The Court nonetheless left itself a lot of leeway: Justice Gorsuch very expressly stated that the Court’s holding was narrow and bound to the facts of the case:
We do not address efforts to ban addicts, or those presently intoxicated, from possessing a firearm. We do not address other prophylactic laws Congress might adopt after determining that users of a particular drug pose a special risk of misusing firearms. We do not address 18 U. S. C. §922(g)(1)’s provision disarming individuals convicted of felonies (often including drug-related ones). We do not even address whether 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. Or proof that a certain drug always renders its users dangerous because of its potency or for some other reason. None of those issues is before us and we do not pass on them either way.
One place I expect that we’ll see Hemani argued is in unlawful carrying of a weapon cases where the defendant is intoxicated under Tex. Penal Code §46.02 (a-1), so remember that the Court was very careful not to go that far. To paraphrase Justice Gorsuch: Remember to prove impairment, and your case will be fine. For those rare few appellate prosecutors who find themselves arguing a Bruen challenge, Hemani gives you a roadmap to look at relevantly similar historical analogues and mind your whos, hows, and whys.
[1] 608 U. S. __ (2026) (Slip. Op. No. 24–1234, June 18, 2026).
[2] 124 F.4th 967 (5th Cir. 2025).
[3] 597 U.S. 1 (2022). For more discussion of Bruen, see the As the Judges Saw it column in The Texas Prosecutor, March–April 2023, Vol. 53 No. 2, “Get ready for the fallout from U.S. v. Rahimi and Bruen.”
[4] 602 U.S. 680, 699 (2024). For more discussion of Rahimi, see the As the Judges Saw it column in The Texas Prosecutor, November–December 2024, Vol. 54 No. 6, “A little post-Bruen clarity in U.S. v. Rahimi.”
[5] Citing United States v. Harris, 144 F.4th 154, 166-167 (3d Cir. 2025), petition for cert. pending, No. 25-372 (filed Sept. 26, 2025); United States v. Hasson, 26 F.4th 610, 616-621 (4th Cir.), cert. denied, 143 S. Ct. 310 (2022); United States v. Patterson, 431 F.3d 832, 836 (5th Cir. 2005), cert. denied, 547 U.S. 1138 (2006); United States v. Lundy, No. 20-6323, 2021 WL 5190899, at *5-*6 (6th Cir. Nov. 9, 2021); United States v. Cook, 970 F.3d 866, 872-878 (7th Cir. 2020); United States v. Baxter, 127 F.4th 1087, 1091-1092 (8th Cir.), cert. denied, 146 S. Ct. 294 (2025); United States v. Purdy, 264 F.3d 809, 811-813 (9th Cir. 2001); United States v. Morales-Lopez, 92 F.4th 936, 940-946 (10th Cir.), cert. denied, 145 S. Ct. 241 (2024); United States v. Monroe, 233 Fed. Appx. 879, 881 (11th Cir. 2007) (per curiam).
[6] Dr. Benjamin Rush, Medical Inquiries and Observations, Upon the Diseases of the Mind, 266 (1812).
[7] Gorsuch also cites a fun anecdote you may have seen before regarding a farewell party for Washington at the Philadelphia City Tavern, which took place three days before the Constitution was signed. The bar tab from the party miraculously survived and shows for the 55 guests there were 54 bottles of madeira wine, 60 bottles of claret wine, 8 bottles of “old stock” (a colonial whiskey), 22 bottles of porter, eight bottles of cider, 12 bottles of beer, and seven large bowls of alcohol punch. Slip. Op. at 9 (citing National Park Service, C. Hershey, Historic Furnishings Plan: City Tavern 64–65 (1974)). The total cost was 87 pounds, or approximately $15,400 in today’s dollars. See “The Epic Bender to Celebrate Washington and the newly finished U.S. Constitution,” The Washington Post, Feb. 22, 2018. Had I been one of the Founding Fathers, I would have died at this party.
[8] 514 U.S. 549, 584 (1955) (Thomas, J., concurring). Lopez held that a federal firearm regulation, in that case the Gun-Free School Zones Act of 1990 (GFSZA), could not be justified under the Commerce Clause on the argument that firearms in the aggregate substantially affect interstate commerce. Congress’s workaround for GFSZA and other federal firearm laws was requiring a showing that the gun in question actually moved through interstate or foreign commerce, typically shown through serial numbers and the maker.
[9] 919 F.3d 437, 465 (7th Cir. 2019).