The Supreme Court of the United States hears oral argument tomorrow in United States v. Hemani, No. 24-1234 — a case asking whether 18 U.S.C. § 922(g)(3), which bars habitual marijuana users from possessing firearms, survives Second Amendment scrutiny under the Bruen text-and-history test. This is a genuinely significant case. I am not happy about it, and I want to explain exactly why.
A Strategic Blunder at the Solicitor General’s Office
Let me be direct: in my view, the single worst thing the Trump DOJ has done on Second Amendment strategy is push Hemani to the Supreme Court. I’m not blaming Attorney General Pam Bondi personally — I doubt she drove this decision. My read is that Solicitor General D. John Sauer and the institutionalists in that office made the call, and it was a bad one.
Here is the problem. According to the government’s own brief, Ali Danial Hemani — the defendant — allegedly has ties to the Islamic Revolutionary Guard Corps (IRGC), a U.S.-designated foreign terrorist organization. He is alleged to be not just a drug user but a drug dealer. The record involves cocaine alongside marijuana. Of all the 18 U.S.C. § 922(g)(3) cases available for the SG’s office to push to the Supreme Court, this is arguably the worst-factored one in the pile.
Compare that to Bryan Range, the Pennsylvania man who pleaded guilty thirty years ago to welfare fraud — a misdemeanor worth roughly $300 in food stamps — and has lived a clean life ever since. The Third Circuit ruled 11–3 in his favor in Range v. Attorney General, 69 F.4th 96 (3d Cir. 2023). That is the kind of sympathetic fact pattern you bring to the Supreme Court if you want favorable Second Amendment precedent. You do not bring Ali Hemani.
If your goal is to rack up institutional win totals in the SG’s office, fine — Hemani is probably a winner. But if your goal is to build favorable precedent protecting the rights of law-abiding Americans, this was the wrong case. I would have expected this case selection from Merrick Garland’s DOJ, not Donald Trump’s.
What the Fifth Circuit Actually Held
The United States Court of Appeals for the Fifth Circuit, on January 31, 2025, affirmed the Eastern District of Texas’s dismissal of Hemani’s charges. The Fifth Circuit’s reasoning: under the Bruen framework, the government can only sustain a conviction under § 922(g)(3) if it proves that the defendant was actually intoxicated at the time he possessed the firearm. Historical tradition, the Fifth Circuit concluded, supports disarming people who are presently impaired — not people who sometimes use drugs and happen to own guns.
When the SG’s office sought certiorari, the Supreme Court granted it — as it almost always does when the federal government asks. And here we are, with one of the Court’s precious few Second Amendment argument slots consumed by a case involving a defendant with IRGC ties and a drug-dealing record. That opportunity cost is real.
The Historical Analogues the Government Will Invoke
The government’s brief will lean heavily on founding-era precedents the Supreme Court already validated in United States v. Rahimi, 602 U.S. 680 (2024), where Chief Justice Roberts wrote for an 8–1 majority and Justice Clarence Thomas dissented. Two categories of laws will carry most of the weight.
First, “going armed” laws — founding-era statutes and common law rules prohibiting individuals from carrying weapons to the terror of the public. Second, surety laws — civil statutes requiring individuals deemed a credible physical threat to post a peace bond before carrying arms. Rahimi upheld § 922(g)(8)‘s domestic-violence restraining order prohibition by analogizing to precisely these frameworks.
The government will also invoke two founding-era legal categories: the “common drunkard” and the “lunatic.” At the founding, the occasional drunk could be fined. But the common drunkard — the habitual inebriate — could be committed to a workhouse. The government’s theory is that a habitual marijuana user maps onto the common drunkard: your disarmament is temporary, entirely within your control, and ends the moment you stop using. The “lunatic” analogy runs in parallel — lunacy (derived from luna, the moon) was understood at the founding as a temporary, cyclical mental condition, distinct from permanent mental disability. A habitual drug user who can stop using, the government will argue, fits that model: disarmed during the condition, restored upon recovery.
What I Expect from the Court — and Why It Matters
My honest prediction is that the government wins. I do not think there are five votes for the proposition that the Constitution requires the government to prove contemporaneous intoxication before prosecuting a habitual user who possesses a firearm. Justice Samuel A. Alito, Jr. — generally a reliable pro-Second Amendment vote — is no fan of criminal drug cases, and I do not think he is going to be an easy vote for Hemani.
The deeper damage, though, is to Bruen methodology. Even a narrow government win will generate a majority opinion expanding the historical-tradition analogues available for firearm regulations. The more broadly the Court reads those founding-era precedents, the easier it becomes for lower courts to uphold other gun restrictions. That is the cost of litigating bad facts at the highest court in the land.
What is especially frustrating is that there is no Second Amendment czar in the SG’s office — no political appointee empowered to tell the institutionalists to stand down when they reach for a case like this one. Until that changes, we will continue to see the solicitor general’s instinct for adding wins to his record override the Second Amendment community’s need for favorable precedent. That is a structural problem the Trump administration has not fixed.
I will cover the oral argument in detail once it concludes on March 2. The hand has been dealt; now we play it as best we can.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.