Few public policy issues divide Americans as deeply as laws regulating gun ownership or the recreational use of marijuana. Yet, last week, the Supreme Court issued a unanimous decision in United States v. Hemani, a case in which unlawful drug use collided with the right to keep and bear arms. This rare showing of unity on such contentious issues was perhaps more surprising for its unlikely victor — not the federal government, but the marijuana-smoking gun owner whose criminal prosecution the court deemed an affront to the Second Amendment.
The court’s unanimous Hemani opinion was clearly correct and reinforced core tenets of its Second Amendment jurisprudence: the government may disarm dangerous people, but doing so requires it to carry a high burden of proof grounded in long-standing historical principles. While the government failed (quite miserably) to carry its burden for disarming one unlawful drug user, it still might prove capable of disarming other drug users under different circumstances.
Astoundingly, many headlines and social media hot takes have twisted this straightforward, if narrow, vindication of a particular marijuana user into a broad judicial victory for all recreational drug users. Some commentators have all too eagerly framed Hemani as universally sanctioning gun rights for marijuana smokers or declaring that habitual marijuana use can never be a reason for the government to disarm a person. Others have insinuated that the ruling vindicates Hunter Biden, whose various criminal convictions included a charge under the same federal statute.
Gun owners, don’t light up your joints with abandon just yet. These characterizations stretch Hemani far beyond what it says.
Yes, the Supreme Court held that the government’s attempt to prosecute Ali Hemani for owning a gun as an “unlawful user of a controlled substance” was inconsistent with the Second Amendment. Under the test established by the court in New York State Rifle & Pistol Association v. Bruen, the government needed to show that the federal statute at issue (18 U.S.C. § 922(g)(3)) was “relevantly similar” to well-established historical gun regulations, particularly in how and why they worked to disarm certain people.
This was a tall task for the government, whose entire theory for disarming Hemani rested on his admission of smoking marijuana several times a week. In its view, because federal law declares marijuana a controlled substance, the mere fact that Hemani regularly smoked it made him dangerous enough to disarm. Moreover, the government took this logic to remarkable extremes, asserting that it could strip anyone of their gun rights the moment they regularly use any amount of any controlled substance for any reason other than its prescribed purpose, without ever providing individualized evidence that any specific drug user is, in fact, dangerous.
The court correctly recognized that tradition comes nowhere close to supporting the government’s claim of such broad and nearly unchecked authority to declare vast swathes of the American public as categorically dangerous. The government’s most significant source of historical support was laws targeting “habitual drunkards.” But these laws didn’t disarm or institutionalize people based on how often they drank any amount of alcohol. Instead, the laws focused on people whose alcohol abuse made them practically incapacitated, incapable of managing their own affairs, or a threat to themselves or others. They also usually afforded people some form of proceeding and due process before even temporarily restricting their liberties.
It’s easy to see why the court rejected the government’s claim that unlawful use of any controlled substance makes a person categorically dangerous. At the same time, nowhere in Hemani did the court declare that habitual marijuana users are categorically nonviolent and can never be disarmed.
On the contrary, the court explicitly said it wasn’t addressing whether the government can prosecute unlawful drug users under §922(g)(3) when it has individualized proof that the drug use (be it marijuana or otherwise) makes them dangerous, or when it can show that certain drugs always make people too dangerous or incapacitated to possess guns.
This is why efforts to “vindicate” Hunter Biden over his § 922(g)(3) conviction fall flat. Put aside the fact that any analysis of Biden’s convictions under Hemani is somewhat moot because his father issued him a sweeping, unconditional pardon before leaving office. By all accounts, the government could absolutely prove Biden’s drug use regularly endangered and incapacitated him in a way that it simply couldn’t do (or refused to do) with Hemani’s marijuana use.
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When Biden bought and possessed the gun at issue, he was a full-blown alcoholic with a serious and destructive cocaine addiction. He smoked crack repeatedly throughout the day, sometimes as often as every 15 minutes from the moment he woke up, while also consuming large quantities of hard liquor. His combined drug and alcohol problems altered his personality, caused him to suffer from bouts of severe sleep deprivation, and often led him into dangerous situations. When his then-girlfriend found Biden’s gun, she tossed it into a garbage can because she was afraid of what he might do with it.
So, no, after Hemani, the government can’t categorically disarm college students who sometimes use a friend’s Ritalin for an all-night study session or prosecute someone who occasionally takes their spouse’s prescription Ambien while a handgun lies in the nightstand next to the bed. But gun owners should continue to think twice — and probably even a third time — before mixing their right to keep and bear arms with habitual drug use.