By highlighting the inconsistencies between federal and state cannabis laws, the Court’s ruling could intensify pressure to reschedule cannabis under federal law.

The U.S. Supreme Court has agreed to hear United States v. Hemani, a case that could redefine the how gun rights and drug policy peacefully co-exist. At issue is whether 18 U.S.C. § 922(g)(3)—which prohibits firearm possession by anyone who “is an unlawful user of or addicted to any controlled substance”—violates the Second Amendment as applied to cannabis users. 

Background: Hemani’s Case 

Ali Danial Hemani, a Texas resident, was indicted under § 922(g)(3) after FBI agents found a Glock pistol, marijuana, and cocaine in his home. The government did not allege Hemani was intoxicated at the time of possession; its case rested on his status as a regular drug user. 

The District Court dismissed the indictment and the Fifth Circuit affirmed, citing the Supreme Court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen, which requires gun regulations to align with the nation’s historical tradition. Because, of course they did.  

The Fifth Circuit wrote: “There is no historical justification for disarming a sober citizen not presently under an impairing influence.” This reflects the court’s view that the government failed to show a tradition of banning firearm possession based solely on past or habitual drug use.  

The Question Before the Supreme Court 

Does a blanket ban on gun ownership for cannabis users—legal in many states but still illegal federally—fit within the historical tradition of firearm regulation? The Fifth Circuit said no, but other circuits disagree, creating a split: 

• Fifth Circuit: Requires proof of impairment at the time of possession. 

• Eighth Circuit: Demands individualized proof that drug use made the person dangerous. 

• Seventh Circuit: Allows categorical bans on “presumptively risky people.” 

This split set the stage for Supreme Court review. 

Government’s Argument 

In its petition for certiorari, the Justice Department defended § 922(g)(3) as consistent with historical analogues: “Restrictions on firearm possession by habitual illegal drug users are analogous to founding-era laws restricting the rights of drunkards.” The government further emphasized that the ban is temporary and self-imposed: “Section 922(g)(3) imposes a limited, inherently temporary restriction—one which the individual can remove at any time simply by ceasing his unlawful drug use.” Solicitor General D. John Sauer argues that habitual drug users with firearms pose “unique dangers,” including risks of armed encounters with police while impaired. (Anyone listening to recordings of arguments before the high court will recognize Sauer's voice.)

Historical Context: Firearms and Intoxication 

The Supreme Court’s Bruen decision requires modern gun laws to be “consistent with the Nation’s historical tradition of firearm regulation.” So what does history say about intoxication and guns? 

• Colonial and Founding Era: Laws often prohibited carrying firearms while actively intoxicated. For example, early statutes barred “going armed” while drunk, reflecting a concern about immediate danger rather than status. 

• 19th Century: Some states enacted laws against carrying weapons while intoxicated in public, but these were situational, not categorical bans based on lifestyle. 

• No Blanket Prohibitions: There is little evidence of founding-era laws permanently disarming individuals for habitual drinking or drug use. Restrictions were temporary and tied to behavior, not identity. 

This historical record supports the Fifth Circuit’s view that disarming a sober person based on past drug use lacks precedent. 

What Would Ol' Tom Jefferson Do? It is worth remembering that when Thomas Jefferson founded the University of Virginia, the institution adopted strict and vigorously enforce rules governing student conduct that included prohibitions on both weapons and alcohol. In October 1824—months before UVA admitted its first students—the Board of Visitors, which included Jefferson and James Madison (principal author of the Second Amendment) barred students from introducing, keeping, or using “weapons or arms of any kind” and likewise prohibited the possession or use of “spirituous or vinous liquors” anywhere within the university’s precincts. These rules were not criminal laws and did not purport to reinterpret the Second Amendment or broader notions of personal liberty; they were disciplinary regulations designed to maintain order, safety, and academic focus in a residential educational setting. Jefferson himself was no stranger to wine or firearms, but at his university he drew a clear line between individual rights in civil society and the authority of an institution to set firm behavioral boundaries for students—a distinction that has been part of American higher education since our founding. 

The Bruen Test and Its Impact 

Under Bruen, courts apply a two-step test: 

1. Does the Second Amendment’s text cover the conduct? (Yes—possessing a firearm.) 
2. Is the regulation consistent with historical tradition? (That’s the debate.) 

The Fifth Circuit concluded that § 922(g)(3) fails step two because it imposes a status-based ban without historical support. The government counters that habitual drug users are analogous to “dangerous” classes historically disarmed, such as loyalists or habitual drunkards. 

Comparison: Hemani vs. Range v. Garland 

The Supreme Court’s decision in Hemani will likely draw on reasoning from Range v. Garland, a landmark Third Circuit case decided en banc in 2023. In Range, the court held that a man convicted of a decades-old nonviolent fraud offense could not be permanently barred from owning a firearm under 18 U.S.C. § 922(g)(1), the federal felon-in-possession statute. 

The Third Circuit emphasized that the government failed to show a historical tradition of disarming individuals for nonviolent offenses: “Our tradition of firearm regulation does not support disarming a person solely because of a nonviolent felony conviction.” (Range v. Garland, 69 F.4th 96, 106 (3d Cir. 2023)) 

This reasoning parallels the Fifth Circuit’s approach in Hemani: both courts reject categorical bans based on status rather than conduct. In Range, the status was “felon”; in Hemani, it’s “unlawful drug user.” 

Key Similarities 

• Both cases apply Bruen’s history-and-tradition test rigorously. 

• Both challenge federal statutes that impose lifetime or indefinite bans based on status. 

• Both involve individuals who were not engaged in dangerous conduct at the time of possession. 

Key Differences 

• Range concerned a permanent ban for a past conviction; Hemani involves a temporary ban tied to ongoing drug use. 

• Historical analogues for disarming felons are arguably stronger than for disarming drug users, yet Range still struck down the ban as applied. 

Other Relevant Cases 

• United States v. Daniels (5th Cir. 2023): Struck down § 922(g)(3) as applied to marijuana users, finding no historical tradition of disarming sober individuals. 

• United States v. Rahimi (2024): Supreme Court upheld § 922(g)(8) (domestic violence restraining orders), signaling that dangerousness remains a key factor. 

Why This Case Matters 

The implications are substantial. Roughly 50 million adults report using marijuana annually, and about one-third of Americans own guns, some half a billion of them. If the Court strikes down § 922(g)(3), cannabis users nationwide could regain gun rights. If it upholds the law, federal power to restrict firearms based on drug use will remain strong. 

The case also highlights the tension between state and federal law: marijuana is legal for recreational or medical use in most states, yet remains a Schedule I controlled substance under federal law. 

Potential Outcomes 

• Strike Down § 922(g)(3): Could invalidate thousands of prosecutions and background check denials. May lead to challenges against other status-based bans (e.g., mental health, domestic violence). 
• Uphold the Law: Reinforces federal authority and signals that categorical bans on “dangerous” classes remain constitutional. 
• Narrow Ruling: Court could require proof of impairment at the time of possession, aligning with the Fifth Circuit’s approach. 

The U.S. cannabis industry is at a critical juncture. Despite widespread legalization at the state level, federal laws continue to classify cannabis as a Schedule I substance under the Controlled Substances Act (CSA)—a designation reserved for drugs with no accepted medical use and a high potential for abuse. This classification has created a financial and operational chokehold on cannabis businesses, leaving even the largest operators struggling to survive. 

Why Rescheduling Matters 

Rescheduling cannabis from Schedule I to Schedule III under the CSA would be a game-changer for the industry. The most significant impact would be the elimination of Section 280E of the Internal Revenue Code, which prohibits companies trafficking in Schedule I or II substances from deducting ordinary business expenses. This results in effective tax rates of 70% or higher for cannabis businesses, making profitability nearly impossible.   

For example, of the top 10 U.S. cannabis operators by revenue in 2024, only one reported a profit, despite generating a combined $718 million in revenue. Without the Section 280E penalty, seven of these companies would have turned profitable almost overnight. Rescheduling would also rekindle investor interest and provide much-needed financial relief to an industry burdened by $6 billion in debt maturing in 2026.   

Nearly one in five Americans use cannabis, and roughly one in three own a gun. For those who do both, federal law currently makes them felons. This paradox could intensify pressure on the federal government to address cannabis’s Schedule I classification.