Supreme Court Wrestles With Gun Ban For Drug Users

The Supreme Court appears likely to rule in favor of a Texas man who uses marijuana several times a week and was convicted under a federal law that bans an “unlawful user” of drugs from possessing a gun.

However, following two hours of arguments at the high court Monday, it was unclear whether the justices will use the case against Ali Hemani to issue another major ruling on when the government can intrude on the 2nd Amendment right to bear arms.

The Trump administration, which has vigorously supported gun rights, broke with many 2nd Amendment advocates by asking the Supreme Court to uphold the ban on gun possession by drug users.

Principal Deputy Solicitor General Sarah Harris faced a persistent barrage of skeptical questions from liberal and conservative justices as she argued that the ban is constitutional because in the founding era many states had laws allowing authorities to detain “habitual drunkards.”

But Justice Neil Gorsuch said many prominent founders acknowledged drinking regularly and could not have thought that meant they should be disarmed.

“John Adams took a tankard of hard cider with his breakfast every day. James Madison reportedly drank a pint of whiskey every day. Thomas Jefferson said he wasn't much of a user of alcohol. He only had three or four glasses of wine a night,” Gorsuch said. “Are they all habitual drunkards…?”

Justice Amy Coney Barrett expressed concern that the government’s definition appeared to sweep in people who regularly use someone else’s prescription drugs, even those medications that don’t seem to pose a public safety hazard once their immediate effects have worn off.

“Let's assume that someone takes their spouse's Ambien prescription. The spouse takes it, too, lawfully with the prescription, but then you take it unlawfully because you break into your spouse's Ambien jar,” Barrett said. “It's not the drug itself in this circumstance that's causing the dangerousness. It couldn't be, because if my husband has a prescription and I don't, what is it about Ambien itself that would make one of us more likely to be dangerous?”

But other conservative justices said there are some drugs that might lead someone to pose a threat even when not directly under the influence. Chief Justice John Roberts suggested it would be unworkable for prosecutors to have to prove in every case whether a particular person was using an illegal drug safely or not.

“It just seems to me that takes a fairly cavalier approach to the necessary consideration of expertise and the judgments we leave to Congress and the executive branch,” Roberts said. “You don't get to go in and … reweigh the legislative determination.”

Under the Supreme Court’s 2022 Bruen ruling, officials seeking to justify a state or federal law related to guns must point to an analogous measure from the founding era or the 1860s, when the 14th Amendment extended enforcement of the Bill of Rights against states.

But Justice Samuel Alito said that decision did not prevent Congress from addressing new threats, as long as the approach is similar to one taken to hazards identified earlier. He said there was little evidence of the use of marijuana for non-industrial uses in the founding era. He then read off a list of major drugs, such as heroin and methamphetamine, noting they were not invented until the second half of the 19th century or later.

Attorney Erin Murphy, arguing for Hemani, pointed to discordant political notes in the government’s argument. She repeatedly highlighted that President Donald Trump has called for a more lax approach to marijuana. In December, he signed an executive order moving towards reclassifying cannabis as a less dangerous drug that could offer medical value.

The court’s three liberal justices generally seemed friendly to Hemani’s arguments. However, Justice Elena Kagan sounded like less of a sure vote to rule that the law violates the 2nd Amendment. She raised the question of someone who regularly uses a powerful drug like the hallucinogen ayahuasca, but isn’t addicted to it.

“There you are in your house, you have a gun in your house as well, so you're owning a gun even though you use this drug,” Kagan said to Murphy.

Murphy said that because such a person is only occasionally impaired and otherwise clearheaded the situation simply wasn’t sufficiently close to the habitual drunkard laws to justify a firearms ban. “I don't think it's consistent with the historical tradition the government has invoked,” she said.

Both sides repeatedly noted that an adjacent provision in federal law bans gun possession by people who are “addicted” to a controlled substance, but it is not directly at issue in Hemani’s case.

The justices might be able to find more common ground by turning to a secondary argument Hemani’s lawyers made: The gun ban for drug users is simply too vague to give people notice of what conduct it prohibits. The statute simply says “unlawful user” and doesn’t include the word “habitual,” a term courts have effectively added to try to rein in the law’s scope.

In 2023, President Joe Biden’s son Hunter Biden was charged with violating the same gun possession statute. An indictment accused him of possessing a revolver while being both an unlawful user of drugs and addicted to them.

At a jury trial in Delaware the following year, Hunter Biden was convicted on three felony gun charges. While he was awaiting sentencing, his father issued the younger Biden a broad pardon for any federal crimes he may have committed over an 11-year period.

A ruling in Hemani’s case is expected by the end of June.