This post summarizes the U.S. v. Hemani decision released by the U.S. Supreme Court on June 18, 2026.

18 U.S.C. § 922(g)(3), barring firearm possession by unlawful users of controlled substances, was unconstitutional under the Second Amendment as applied to a regular user of marijuana; habitual drunkard laws were not sufficiently similar to § 922(g)(3) in purpose and operation to justify categorical disarmament

Under 18 U.S.C. § 922(g)(3), a person who is an “unlawful user of” controlled substances or who is “addicted to” controlled substances may not legally possess a firearm. A violation of that law is a felony offense punishable by up to 15 years in prison. “Controlled substances” are defined by reference to the Controlled Substances Act (“CSA”), which includes all controlled substances within Schedules I-V (unlike North Carolina law, federal law does not have a category of Schedule VI controlled substances).

The defendant was a U.S.-Pakistani dual citizen in Texas. The federal government suspected him of involvement in terrorism and searched the home where he lived with his family. The defendant turned over a gun during the search and alerted agents to the presence of marijuana on site. He admitted to law enforcement that he used marijuana “about every other day.” The government prosecuted him under § 922(g)(3) under the theory that the defendant qualified as an “unlawful user” of marijuana. The defendant moved to dismiss, arguing that the prosecution violated his Second Amendment rights. The district court agreed and dismissed the indictment. The government appealed, and the Fifth Circuit affirmed. The government sought review at the U.S. Supreme Court. It granted certiorari and unanimously affirmed.  

To determine whether a firearms regulation violates the Second Amendment, courts must first determine whether the regulated conduct is covered by the amendment. If the conduct falls within the protections of the Second Amendment, that conduct is presumptively protected. In order to overcome that presumption, the government must demonstrate that its regulation of the conduct is “consistent with the Nation’s historical tradition of firearm regulation.” New York Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 24 (2022). While the government need not show that the challenged regulation has a “historical twin” in the Nation’s history, it must show that the current regulation is consistent in principle with the historical tradition. U.S. v. Rahimi, 602 U.S. 680, 692 (2024). Two central considerations of whether a modern regulation is sufficiently similar to a historical one are the “how” and the “why” of the law. “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.” Hemani Slip op. at 5.

Here, the government agreed that § 922(g)(3) applied to conduct covered by the Second Amendment. It argued that the challenged law was akin to historical laws regulating habitual drunkards. Three categories of habitual drunkard laws existed in the country’s history—vagrancy laws, civil commitment laws, and surety laws. According to the government, § 922(g)(3) shares the same purpose as these historical analogues—to regulate unlawful users of intoxicating substances and to protect society from dangerous and violent people. These laws also operate similarly, in the government’s view, because the historical laws allowed the detention of people falling within the ambit of the habitual drunkard laws (necessarily resulting in their temporary disarmament), and § 922(g)(3) similarly temporarily disarms people while they are unlawful users of controlled substances.

The Court rejected this argument and held that the government failed to carry its burden to justify § 922(g)(3) on the facts of the case. Habitual drunkard laws are significantly different than the modern prohibition of unlawful users. The use of intoxicating substances has a long and colorful history in the country and mere use (or even regular, excessive use) of such substances did not bring a person within the reach of habitual drunkard laws. Only when a person was so routinely intoxicated as to lose his “ordinary reasoning faculties” or become unable to manage his own affairs would a person historically be considered a habitual drunkard. Id. at 8. The government’s argument that the habitual drunkard laws targeted people merely because they used intoxicating substances failed. “[§ 922(g)(3)] sweeps in large numbers of people without regard to whether their substance use has the kind of incapacitating effect on them that historical habitual drunkard laws normally required.” Id. at 10. The defendant’s case exemplifies how the challenged law differed from the historical ones. Nothing in the record showed how much marijuana the defendant used, how strong that marijuana was, or how that use affected the defendant. Under the government’s theory, a person who regularly used a spouse’s or friend’s medication for any purpose whatsoever would be subject to felony prosecution and permanent disarmament, regardless of the amount used or the effects caused by such use.

Habitual drunkard laws were also not primarily aimed at protecting the public from dangerous and violent people. Vagrancy laws targeted people who refused to work and who could not provide for their families. They also swept in many more people than habitual drunkards. Civil commitment laws were primarily meant “to protect habitual drunkards from themselves and their families from financial devastation.” Id. at 17. Surety laws aimed at ensuring good behavior were meant to prevent society from scandalous behavior. Such misbehavior sometimes included habitual drunkenness, but also included such diverse behaviors as frequenting brothels, public cursing, and blasphemy. To invoke these surety laws, no showing of dangerousness or risk of violence was necessary. [Note, the kind of good-behavior surety laws discussed here are distinct from the type of surety laws aimed at preventing violence that were discussed in the Rahimi decision.]

Additionally, people subject to historical habitual drunkard laws were usually given some type of pre-deprivation due process. Vagrants could only be detained after a criminal conviction; a habitual drunkard could not be committed or assigned a guardian without a probate action or similar proceeding; surety laws involved a hearing before a magistrate or similar official. § 922(g)(3), by contrast, operates automatically and without any pre-disarmament process.

Finally, two other factors weigh against the government’s argument that § 922(g)(3) is meant to protect the public from dangerous people. Because the statute is tied to the CSA, it reaches far beyond dangerous drug users and instead applies to anyone who uses a controlled substance unlawfully. Further, the government’s overall approach to marijuana is inconsistent with categorical disarmament of marijuana users. The government has recently begun the process of rescheduling marijuana from a Schedule I drug to a Schedule III; the Department of Justice has long had a policy to restrain prosecutions against marijuana users; and the clear majority of states, along with three territories and the District of Columbia, permit some version of legal marijuana use. “All of which leaves [the government] awkwardly positioned to suggest that the millions of Americans who now regularly use marijuana are categorically and unusually dangerous.” Id. at 21-22.

The Court emphasized that its holding was narrow. This case does not address the “addicted to” prong of § 922(g)(3), nor any other provision of § 922(g). The Court also did not rule out that the government could make an individualized showing that a person’s habitual marijuana use (or use of another drug) rendered them dangerous and therefore subject to a potentially successful prosecution under § 922(g)(3). The Court merely held that the government failed to carry its burden to show that this prosecution was consistent with the Second Amendment.

The judgment of the Fifth Circuit Court of Appeals was therefore affirmed in full.

Justice Thomas penned a separate concurrence. In his view, § 922(g) exceeds the bounds of authority granted to Congress under the Commerce Clause. He suggested that the Court revisit that issue in a future case.

Justice Jackson also concurred separately, joined by Justice Sotomayor. They believed that the Bruen analysis is “unworkable,” and that the Court’s former approach to Second Amendment challenges of means-end scrutiny was the “more rational” analysis. Id. at 32 (Jackson, J., concurring).

Justice Alito, joined by Justice Kagan, also concurred separately. They would have affirmed on the grounds that the government’s justifications were “too far afield” to be applied to a regular marijuana user only, without further discussion. Id. at 39 (Alito, J., concurring).