Hemani Is Not the End of Drug-and-Gun Litigation

The Supreme Court’s unanimous decision in United States v. Hemani held that the federal government violated the Second Amendment when it disarmed Ali Hemani based solely on his regular marijuana use. That is significant. But it is not the sweeping drug-and-gun ruling some may be tempted to see.

For state courts, the message is more precise: Marijuana-only firearm prohibitions are now constitutionally vulnerable. But Hemani leaves plenty of room for restrictions tied to conduct, intoxication, evidence of more frequent impairment or addiction, more dangerous drugs, trafficking, or individualized findings of risk. It also does not foreclose the government’s ability to make different historical arguments to justify even marijuana-related convictions in a different case.

That makes Hemani less an endpoint than a roadmap.

What Hemani Actually Held

During a search of Ali Hemani’s family home, federal agents found marijuana, cocaine, and a firearm. Hemani admitted the marijuana and firearm were his and that he used marijuana about every other day. The government relied solely on that admission to charge him under the federal statute that disarms any “unlawful user” of a controlled substance.

In other words, the government’s position was simple: Regular marijuana use, standing alone, was enough to extinguish Hemani’s Second Amendment rights.

The Court disagreed. Applying the originalist approach set forth in New York State Rifle & Pistol Association v. Bruen, the Court asked whether the federal prohibition was sufficiently analogous to historical laws provided by the government. In particular, the government pointed to historical laws regulating “habitual drunkards,” including vagrancy laws, civil-commitment regimes, and surety requirements. But the analogy failed. Those laws, the Court held, targeted chronic incapacity, disorder, dependency, or danger. They also generally provided more process before deprivation than the federal statute. They did not automatically disarm every person who regularly drank alcohol.

That distinction mattered. Hemani used marijuana every other day. The government did not rely on addiction, intoxicated gun handling, dealing, violence, threats, or dangerous misuse. The government also did not make allegations related to cocaine use. On that record, the historical analogy did not hold.

Weed Is the New Booze

One reason Hemani came out the way it did is that marijuana now occupies a very different social and legal position than it once did. As Justice Samuel Alito put it in concurrence, marijuana use today is much like alcohol use at the founding.

In other words, a person who uses cannabis a few times a week in a state that has decriminalized recreational use looks, functionally, like a person who drinks beer or wine a few times a week. And ordinary drinking, even regular drinking, was not historically treated as a basis for categorical disarmament, according to the justices.

The majority made the point by invoking the habits of the founders themselves. John Adams reportedly began the day with hard cider at breakfast. Thomas Jefferson was said to drink several glasses of wine at night. No one would have called either man a “habitual drunkard” subject to the restrictions cited by the government for that reason alone.

The historical tradition invoked by the government, put differently, targeted something more: incapacity, dependency, disorder, misuse, or danger. If weed is the new booze, marijuana use alone cannot do the constitutional work that addiction, dangerous conduct, or inability to handle personal affairs due to drinking did historically.

But Other Drugs May Be Different

Hemani was a marijuana case. The Court said so repeatedly. It took pains to emphasize that “this case is a narrow one.”

Regular cocaine, methamphetamine, or opioid use may present stronger arguments for disarmament. Those substances may involve greater risks of compulsive use, impaired judgment, erratic behavior, or dangerous conduct — features that look more like the chronic debilitation historically associated with habitual drunkenness.

But that does not mean every firearm restriction while using those drugs is automatically constitutional after Hemani. The government still has work to do in defending such laws. After Hemani, it must connect the restriction more closely to the kind of danger historical laws addressed and how the historical laws operated.

That is one of Hemani’s central lessons. The constitutional problem was not merely that marijuana was involved. It was that the government made a weak historical case for treating ordinary recurring use as enough, without evidence of impairment, addiction, misuse, danger, or individualized proof of risk.

The Fifth Circuit’s Broader Rule Did Not Win

It is also important not to overread Hemani in the other direction.

The U.S. Court of Appeals for the Fifth Circuit had suggested that history supports, at most, laws barring people from carrying firearms while intoxicated. The Supreme Court affirmed the result as to Hemani, but not that broad rule.

That matters for state courts. A state need not prove that every drug-and-gun law is an intoxicated-carrying law. The Court left open the possibility that substance use can have firearm-related legal consequences even when a person is not presently intoxicated.

But, again, the state cannot just label someone a user. Especially in marijuana cases, the record needs something more to justify disarmament.

Post-Bruen Cases Depend on the Record the Parties Build

There is another reason Hemani should be read carefully: Bruen makes constitutional outcomes especially dependent on party presentation in any given case.

The Court emphasized that it decides Second Amendment cases based on the historical record and arguments presented by the parties. The federal government’s history in Hemani failed to persuade any of the nine justices. But that does not mean every government defending every drug-related firearm law will necessarily fail.

A state defending a similar statute or prosecution might offer different historical analogues. It might rely on Reconstruction-era sources the federal government did not emphasize in Hemani. It might focus on laws involving dangerousness, mental illness, intoxicated conduct, or armed criminal activity. Indeed, in other cases involving the same federal statute, the government has relied on different historical sources that it opted not to brief in Hemani. The government presumably decided such history was weaker than the regulatory tradition it offered, but there is no way to know how a majority of the justices would have viewed those different traditions.

Heavy reliance on party presentation is both a feature and a flaw of Bruen. The analysis will change depending on what the parties argue, what sources they rely on, and how courts characterize them. Hemani resolves the constitutional question based on one set of historical arguments. It should not be read to freeze the historical inquiry, and foreclose a contrary result, in a different case.

State Laws Vary Widely

The state law landscape on this issue is especially varied. Some states essentially copy the federal model at issue in Hemani. West Virginia, for example, bars firearm possession by unlawful users of or those habitually addicted to controlled substances. In State v. Wilfong, the West Virginia Supreme Court treated that kind of prohibition as presumptively lawful. After Hemani, applications like Wilfong are vulnerable to as-applied Second Amendment challenges when the disqualification rests on marijuana use alone.

Other states are positioned differently. Minnesota excludes qualifying medical and adult-use cannabis from its drug-related firearm disability. Virginia targets only those drugs that are on Schedule I or II and thus have the highest potential for abuse. In such places, a marijuana-only case like Hemani would not arise in the same way.

New York takes another approach. It denies firearm licenses to unlawful users of controlled substances as defined by federal law, but it does so through a licensing system that includes the possibility of judicial review. That process may allow for a more individualized assessment — at least in theory — and individualization was one of the concerns animating Hemani.

Still other laws are conduct-based. Ohio bars carrying or using a firearm while under the influence. Laws like that stand on firmer ground because they target impairment, dangerous combinations, or criminal conduct — not mere drug use.

The Bottom Line

Hemani makes marijuana-only firearm prohibitions constitutionally suspect. But Hemani is narrow by design. It does not resolve cases involving addiction. It does not decide cases involving cocaine, methamphetamine, opioids, or other drugs with different risk profiles. It does not foreclose restrictions tied to intoxicated carrying, armed trafficking, dangerous conduct, or individualized findings of risk. And it does not invalidate felon-in-possession laws, which accounted for more than one-third of all Second Amendment challenges in the year after Bruen.

For state courts, the key question after Hemani is not whether drug-and-gun laws survive or fall as a category. The question is what conduct the law actually targets, what the record actually shows, and whether the government can connect that restriction to historical tradition better than the U.S. government did in Hemani.

Eric Ruben is a professor of law at SMU Dedman School of Law and a fellow at the Brennan Center.