The Supreme Court heard nearly two hours of oral argument today in United States v. Hemani, No. 24-1234 — testing whether 18 U.S.C. § 922(g)(3), which bars firearms possession by any “unlawful user of or addicted to any controlled substance,” can constitutionally be applied to a regular marijuana user. I have been on record saying this was a terrible vehicle for the Trump DOJ to push. Today’s argument did nothing to change that view. But the argument went better for the Second Amendment than I feared.
Why I Hated This Case from the Start
Ali Danial Hemani is not a sympathetic defendant. The government’s allegations — IRGC-linked fraud activity, a Glock 9mm, roughly 60 grams of marijuana, and nearly 5 grams of cocaine found during an FBI search — are exactly the kind of facts that make judges want to rule against the Second Amendment claimant. The Fifth Circuit affirmed dismissal of the § 922(g)(3) charge on January 31, 2025, holding the statute unconstitutional as applied to regular marijuana users not proven intoxicated at the time of possession. That was a genuine Second Amendment win. The Trump DOJ then decided to petition the Supreme Court, and I thought that was a strategic error of the first order.
If you want to win at the Supreme Court on Second Amendment grounds, you want choir boys as your clients — not someone with alleged ties to the Islamic Revolutionary Guard Corps. Yet here we are, poised for a ruling on a fact pattern that could have been avoided entirely.
The Good News: Bruen Is Not Going Anywhere
Several things came out of argument that I consider genuine wins for the Second Amendment, regardless of how the Court ultimately votes.
First, the Bruen methodology — text first, then history, with the burden on the government to show a historical tradition of analogous firearms regulation — will clearly govern this decision. New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022), is not being unwound here. Every additional SCOTUS decision that applies Bruen’s framework makes it harder for future courts to walk it back — and that matters for every AR-15 ban, waiting period challenge, and young-adult case currently in the pipeline.
Second, tiers of scrutiny — the interest-balancing approach that let lower courts rubber-stamp gun restrictions for years — appear dead on arrival. The Court is not going back there.
Third, and most important for ordinary gun owners: the emerging touchstone for who may be disarmed is physical dangerousness. If you present a credible threat of physical violence to others, temporary disarmament may be permissible. If you do not, the Second Amendment protects you. That is a workable, protective standard, and a majority seems to be gravitating toward it.
Gorsuch Asked the Question I’ve Been Asking for Months
Justice Neil M. Gorsuch essentially asked Sarah Harris of the Solicitor General’s office directly why the Trump DOJ chose this case — with these facts — to bring to the Supreme Court. He pressed the point more than once. I could not have asked it better myself, and I have been raising it since the cert petition was filed.
Justice Gorsuch also posed a question that cuts to the historical heart of the case. He pointed out that the Founding Fathers — Thomas Jefferson, James Madison, and their contemporaries — were habitual drinkers of wine and whiskey. He asked whether Congress today could disarm those Founders on the theory that they were “unlawful users” of alcohol, and the government struggled to provide a coherent answer. The implication is that alcohol and marijuana may not be sufficiently analogous to founding-era regulated substances, which creates a serious historical-tradition problem for the government’s position under Bruen.
Where the Votes Seem to Land
My read going in was that this case would peel off Justice Samuel A. Alito, Jr. and Chief Justice John G. Roberts, Jr. — two justices who are reliably pro-government when criminal defendants are involved. Today confirmed that. Both appeared comfortable deferring to the executive branch’s determination that marijuana is a Schedule I controlled substance under the Controlled Substances Act, 21 U.S.C. §§ 801 et seq., and both seemed inclined to let the § 922(g)(3) conviction stand.
That gives us two scenarios. The worst case: Alito and Roberts join the three liberal justices — Justice Elena Kagan, Justice Sonia Sotomayor, and Justice Ketanji Brown Jackson — in a 5–4 ruling against Hemani. The best case: a 7–2 win for Hemani, with Barrett, Gorsuch, Justice Brett M. Kavanaugh, and Justice Clarence Thomas joining the liberals to hold § 922(g)(3) unconstitutionally vague or constitutionally inapplicable as to unlawful users who are not shown to be presently intoxicated or dangerous. Justice Barrett raised the vagueness problem sharply — asking whether someone who takes a roommate’s Ambien or Ritalin during finals week becomes a disarmed “unlawful user” under federal law. That is an as-applied and void-for-vagueness argument that could attract liberal votes on due process grounds entirely apart from the Second Amendment.
Justice Kavanaugh added a distinction worth watching: the historical record may support disarming addicts — people who have lost control of their conduct — but not mere unlawful users who choose to use drugs. That addicted/user distinction could anchor a majority opinion.
What This Means for the Second Amendment Going Forward
Whatever the outcome in Hemani, I do not believe it will produce bad ripple-effect precedent for ordinary Second Amendment supporters. AR-15 ban cases, waiting period cases, 18-to-20-year-old cases — none of those turn on § 922(g)(3) or on whether a marijuana user can be disarmed. A decision here, even a narrow loss, should not contaminate those cases.
The decision will come down by the end of June 2026. My prediction: this is closer to a 7–2 Hemani win than the establishment expects — but not for the reasons gun rights advocates would prefer. Still, a win is a win, and Bruen will emerge from this term intact.
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.