Justice Neil Gorsuch sharply questioned the Justice Department over the amount of regular unlawful drug usage necessary to trigger a federal gun charge on Monday during arguments in a key Second Amendment case for drug users.
The Supreme Court heard arguments in the case United States v. Hemani, where Ali Hemani challenged the constitutionality of a federal gun charge against him. The charge was filed based on his admission to consuming marijuana “about every other day.” Hemani’s lawyers argued the federal law barring firearm possession for any person who “is an unlawful user of or addicted to any controlled substance” violates the Second Amendment.
Arguing for the Justice Department, Principal Deputy Solicitor General Sarah Harris asserted the law is constitutional. Harris maintained that, like habitual drunkards, unlawful drug users may have their gun rights temporarily taken away. Harris faced a grilling from the justices over this assertion.
Gorsuch zeroed in early in the arguments on how much regular unlawful drug use would be needed to take away someone’s ability to possess a firearm, appearing deeply skeptical of the legality of the sweeping federal law.
“You would qualify a habitual user as one gummy bear every other night,” Gorusch asked, referring to marijuana infused gummy bears, to which Harris responded, “Absolutely.”
Gorsuch also pressed Harris on how marijuana is “sort of illegal and sort of isn’t.” The federal government does not enforce drug laws for marijuana in the same way as other drugs, as more states have legalized the drug. Harris pushed back on the assertion that the federal government is “of two minds” on marijuana enforcement versus other illegal drug enforcement.
Hemani’s case originates from an August 2022 FBI search of his family home, during which agents found his firearm, roughly 60 grams of marijuana, and 0.95 grams of cocaine. Hemani told the FBI at the time that he consumed marijuana “about every other day.” He was later charged under the federal law at the center of the case based on his mention of regular marijuana consumption, but both a federal district court and the Fifth Circuit Court of Appeals tossed the indictment as violating his Second Amendment rights.
Many of the questions leveled at Harris focused on the definition of an “unlawful drug user,” including how frequently a person would have to consume the illegal drugs to violate the law at the center of the case, similar to Gorsuch’s question.
Under the Supreme Court’s 2022 ruling in New York Rifle & Pistol Association v. Bruen, gun regulations must conform with the country’s history and tradition of gun laws to be constitutional. Justice Brett Kavanaugh questioned the laws Harris pointed to as evidence of similar laws in the country’s historical tradition, as being more targeted at “addicts” rather than unlawful drug users.
Justice Amy Coney Barrett asked about other drugs, and how they could pose a risk of violence that the law is designed to combat. She mentioned Robitussin, Ambien, Tylenol with codeine, testosterone, and Adderall as examples.
“Is it your position that all of the drugs that I just mentioned would pose a risk of violence and dangerous behavior?” Barrett asked Harris, to which she responded yes. “So it’s the lawfulness?” Barrett followed up.
Hemani’s lawyer, Erin Murphy, argued to the justices that the law is unconstitutional regarding her client’s marijuana usage, focusing on her client’s usage of the drug, but did not contest that it “doesn’t mean that the statute is unconstitutional as to every drug.”
Chief Justice John Roberts questioned Murphy on that assertion, asking if she wanted the law challenged on a case-by-case basis based on the drug involved in each case rather than ruling if the law is on its face unconstitutional. Murphy received further questions from other justices on her assertion, with Justice Elena Kagan later asking what makes marijuana distinct from other illegal drugs.
“How do you win with marijuana, but you don’t win with that kind of drug where, really, anybody looking at it would say, oh, that is a dangerous thing to have that drug and a gun in the same place? Is it just, you just can’t do it?” Kagan asked.
The justices overall appeared more skeptical of the Justice Department’s arguments than of Hemani’s, as they questioned Harris for a longer period during the oral arguments than Murphy.
SUPREME COURT COULD LOAD UP ON GUN CASES THIS TERM
The law at the center of the case heard by the justices Monday was also the basis for one of the three gun charges on which Hunter Biden, son of former President Joe Biden, was found guilty by a federal jury. The former president pardoned Hunter on those charges in December 2024 before leaving the White House.
The Supreme Court is expected to issue a decision in United States v. Hemani by the end of June, when the current Supreme Court term ends. The justices are also expected to issue a ruling in another gun case, Wolford v. Lopez, which deals with Hawaii’s “vampire” gun law.