In United States v. Hemani,[1]the United States Supreme Court concluded that the government did not carry its burden of showing that the 18 U.S.C.S. section 922(g)(3) prosecution of a defendant who used marijuana a few times a week was consistent with the Second Amendment.
Background
Ali Hemani is a dual citizen of the United States and Pakistan who was born in Texas. For most of his life, he has lived in the Dallas area with his parents and working a stable job. The government suspected Hemani and his family members of terrorism-related activities and conducted a search of the family home in 2022. Throughout the process, Hemani was cooperative. He surrendered a gun he kept in the house, pointed agents to some marijuana on the property, and consented to an interview during which he told law enforcement agents that he used marijuana about every other day.
More than six months after the search, and relying solely on Hemani’s admitted use of marijuana, the government prosecuted Hemani under 18 U. S. C. section 922(g)(3) for knowingly possessing a gun in his home while being an unlawful user of a controlled substance. Section 922(g)(3) automatically bans anyone who is an “unlawful user of” or “addicted to” a “controlled substance” from possessing a gun. For defying this ban, an individual can face up to 15 years in federal prison, and disarmament for life.
Hemani moved to dismiss the indictment, arguing that the government’s effort to enforce Section 922(g)(3) against him violated the Second Amendment. The District Court granted the motion, and after an unsuccessful appeal to the Fifth Circuit Court of Appeals, the government asked the United States Supreme Court to review the case.
Discussion
The Second Amendment protects the right of “all Americans” to keep and bear firearms for self-defense, District of Columbia v. Heller, 554 U. S. 570, 581 (2008). The Supreme Court explained that to determine when the government infringes the Second Amendment, courts ask whether the Amendment’s terms cover the conduct in question; if so, the Constitution “presumptively” protects it. New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U. S. 1, 24 (2022). To overcome that presumption, the government bears the burden of showing its regulatory efforts are “consistent with the Nation’s historical tradition of firearm regulation.” Ibid. To this end, the government may “reaso[n] by analogy,” showing that its contemporary regulation is “relevantly similar” to ones “well-established” in the Nation’s history. Id., at 28-30.
The government conceded that Section 922(g)(3)’s unlawful user provision burdens conduct presumptively protected by the Second Amendment. In the construction of Section 922(g)(3) that the government sought to apply, the law automatically bans an individual from possessing a gun from the moment he becomes an unlawful user of any controlled substance until he ceases being one. The government analogized its construction of Section 922(g)(3) to what it called “habitual drunkard” laws, which the government maintained were well-established in the country’s history and “relevantly similar” to Section 922(g)(3), Bruen, 597 U. S., at 29. The Court stated that the government wanted the Court to conclude that anyone who regularly uses marijuana is categorically violent and dangerous without any further showing.
However, the Supreme Court explained that unlike Section 922(g)(3), historical laws targeted habitual drunkards not just because they regularly drank, but because they drank to such an excess that they were regularly incapacitated, incapable of conducting their affairs, or were a threat to themselves or others. By contrast, on the government’s account, Section 922(g)(3) automatically disarms anyone who regularly uses any amount of any controlled substance for anything other than its prescribed purpose, without requiring a showing that a particular individual is regularly incapacitated, incapable of conducting his affairs, or a threat to himself or others.
The Court also rejected the government’s claim that the modern provision and historical provision shared similar purposes in disarming unlawful users of intoxicants to protect the public from unusually dangerous individuals who will commit violent crimes. The historical laws sought to promote productivity and suppress various vices, to protect habitual drunkards from themselves and to protect their families from financial devastation, or to protect the community from immorality; not to protect the public from a category of unusually dangerous persons.
Moreover, the historical laws the government identified provided some form of process before an individual lost any of his liberties, whereas the government’s construction of Section 922(g)(3) would automatically divest an individual of his constitutional right to bear arms the moment he became an unlawful user and until he ended his drug use — all without any pre-deprivation process.
Finally, the government’s own regulatory actions undercut its position: the Court observed that the Department of Justice has directed federal prosecutors to curtail enforcement efforts against marijuana users, most States have legalized marijuana use to some degree, and the government recently moved some marijuana products from Schedule I to the lower potential for abuse level of Schedule III of the Controlled Substances Act (CSA), upon which Section 922(g)(3) relies.
Because the historical laws on which the government relied targeted different kinds of people, did so for different reasons, and operated in different ways, the Supreme Court concluded that the government’s analogy failed. Thus, the government could not carry its burden of showing its prosecution of Hemani complied with the Second Amendment. Accordingly, the Supreme Court affirmed.
HOW THIS AFFECTS YOUR AGENCY
The Supreme Court stated that the case was a narrow one. The Court noted that it did not address banning addicts or those presently intoxicated, from possessing a firearm, nor other laws Congress might adopt after determining that users of a particular drug pose a special risk of misusing firearms. It did not consider 18 U.S.C. section 922(g)(1)’s provision disarming individuals convicted of felonies, nor even whether the government could bring a prosecution under Section 922(g)(3) accompanied by individualized proof that the defendant’s use of marijuana (or any other drug) renders him a danger to himself or others (or proof that a certain drug always renders its users dangerous because of its potency or for some other reason). The Court explained that none of those issues was before it in this case.
Instead, the Court only addressed the government’s position that it may automatically strip the defendant here of his Second Amendment right to possess a firearm because he uses marijuana a few times a week, and that, because he possessed a gun despite this prohibition, the government could imprison him for up to 15 years and disarm him for life. The Court disagreed, observing that in the government’s view, none of this hinged on how much marijuana the defendant uses or what effect it has on him, whether he kept a firearm only in his home for self-defense, never misused a gun while intoxicated, and never posed a danger to himself or others as a result of his marijuana use. The Supreme Court disagreed that the government need only show that an individual like the defendant here regularly uses any amount of any controlled substance.
CCW Issuance
Section 922(3) was being presented in this case as a categorical prohibition on possessing a firearm for anyone who was a marijuana user. The rejection by the Supreme Court of this extent of burden on the Second Amendment must be anticipated to have repercussions for the parameters of CCW issuance in California.
Penal Code § 26202 directly incorporates the “unlawful user” provision of 922(3) as a basis for disqualification:
(8) Is, as described in paragraph (3) of subdivision (g) of Section 922 of Title 18 of the United States Code and applicable regulations and guidance, an unlawful user of or addicted to any controlled substance.
Issuing entities should consider how the holding in the Hemani decision similarly prevents categorical disqualification of an applicant based only on their status as a user of marijuana. Disqualification based on marijuana use can now be understood to require an evaluation to determine danger and safety associated with use by the applicant. This invokes questions pertaining to variables such as frequency of use, potency, circumstances of use, and conduct associated with use.
As a means of addressing this change, issuing agencies continue to have the applicant investigation process as it exists under Penal Code § 26202. Additionally, the restrictions on a license under Penal Code § 26200 pertaining to substance use and intoxication and the authority to impose further reasonable restrictions remain available as well.
The full implications of this decision as it pertains to CCW issuance have yet to be defined. However, one point of certainty does exist. The quality of the documentation associated with disqualification for marijuana use will undoubtedly be of pivotal importance in any subsequent litigation.
As always, if you wish to discuss this matter in greater detail, please feel free to contact James Touchstone at (714) 446–1400 or via email at jrt@jones-mayer.com
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[1] 146 S. Ct. 1677 (2026).