Guns, drugs and the Second Amendment all converged at the Supreme Court on Monday in a case that could significantly weaken the Gun Control Act of 1968.
Some background: marijuana is legal in some form in 40 states but remains illegal under federal law as a Schedule I drug. President Trump has sought to reclassify marijuana as less dangerous, yet the Justice Department was in the Supreme Court asking the justices to uphold a federal statute that makes it a crime — punishable by up to 15 years in prison — for a marijuana user to possess a firearm.
The case comes after the court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen, which held that a modern gun regulation must be analogous to a restriction that existed at the founding era to be constitutional.
In the courtroom, Deputy Solicitor General Sarah Harris argued the federal ban on gun possession by drug users is analogous to founding-era laws that disarmed “habitual drunkards.” Justice Neil Gorsuch pushed back, noting founders’ drinking habits — “John Adams took a tankard of hard cider with his breakfast every day. James Madison reportedly drank a pint of whiskey every day” — and asked whether such figures would be considered “habitual drunkards” under the government’s theory. He also posed a hypothetical about someone taking a single THC gummy “every other day” and asked whether that would justify lifelong disarmament.
Justice Ketanji Brown Jackson used the case to highlight the difficulty of applying Bruen. “The entire point, I thought, of the Bruen test was to say that the only thing the modern legislature gets to do is follow the judgments of the founding-era legislature” about who is dangerous and who may be disarmed, she said.
Justice Samuel Alito observed that many commonly used drugs today — heroin, methamphetamine, fentanyl, and significant marijuana use — did not exist or were not prevalent at the founding, making it unclear what the Second Amendment’s adopters thought about illegal drug use per se. Justice Amy Coney Barrett said she was “stuck,” noting there is no evidence the defendant’s every-other-day marijuana use made him dangerous or justified depriving him of a legally purchased, properly stored firearm. She listed other federally regulated drugs — Robitussin, Ambien, Tylenol with codeine, testosterone, Adderall — and said she is not a pharmacologist but none obviously suggest a risk of violence.
When the defendant’s lawyer, Erin Murphy, argued for striking down the federal prohibition, Chief Justice John Roberts pressed her on practical consequences. If Congress and the executive branch still classify marijuana as dangerous but courts bar disarmament, why wouldn’t the same reasoning apply to other banned drugs like PCP and amphetamines? Roberts noted that gun bans in places such as courthouses could then require case-by-case litigation, taking from Congress and the executive branch decisions the court typically defers to.
Justice Elena Kagan asked about ayahuasca, describing it as an intense, long-lasting hallucinogen where “reality dissolves,” and suggested Congress could reasonably conclude that when reality dissolves, guns should not be present. Barrett, unfamiliar with the drug, asked if it was real, prompting laughter when Kagan confirmed it was.
The case was brought by the Justice Department against Ali Danial Hemani. Although the government has characterized him elsewhere as having ties to terrorism and drug dealing, the charges in this matter stem from a search of the house he shared with his parents where agents found a legally purchased gun. Hemani told FBI agents he used marijuana every other day and was charged under the 1968 law that bars drug users and addicts from possessing firearms.
The Fifth Circuit later threw out the charges, ruling the federal statute violated the Second Amendment, and the Justice Department appealed to the Supreme Court. A decision is expected by summer.