Most of the coverage of United States v. Hemani stopped at the holding: the federal ban on gun possession by users of illegal drugs, 18 U.S.C. § 922(g)(3), cannot constitutionally be applied to a man whose only offense was using marijuana. That result matters. But buried in the Court’s reasoning is a phrase that reaches far beyond marijuana and lands squarely on one of the anti-gun movement’s favorite tools: pre-deprivation process. Properly understood, Hemani hands gun owners a powerful argument against state red flag laws.
Two Ways to Disarm a Dangerous Person
Start with a distinction the red flag debate is designed to obscure. America has always had a way to deal with the genuinely dangerous and the violently mentally ill. It is called civil commitment, and every state has had it for generations. It is also hedged with serious protections: appointed counsel, expert testimony, the right to confront witnesses, and a government burden of proof set at “clear and convincing evidence” under Addington v. Texas, 441 U.S. 418 (1979). Those safeguards exist because liberty is a fundamental right, and the Constitution does not let the state take a fundamental right on a hunch.
Red flag laws — now on the books in roughly two dozen states and the District of Columbia — are built to bypass that machinery. They typically permit a court to strip a person’s firearms on an ex parte petition, with the hearing coming only afterward. The single remedy is confiscation of guns, which means the law reaches exactly one class of Americans: those who own them. If you are truly too dangerous to hold a rifle, you are too dangerous to walk the street — and civil commitment, not a gun-only shortcut, is the answer the law already supplies.
What Hemani Demands: Process Before Deprivation
Here is where Hemani changes the terrain. The Court did not treat the timing of disarmament as an afterthought; it made process central. Reviewing the historical analogues the government offered, the majority observed that a vagrant could be jailed “generally only upon a conviction,” a habitual drunkard committed “usually only after proceedings before something like a probate court,” and a surety demanded only after “a proceeding before a justice of the peace.” Each required process before the loss of liberty. Then the Court turned on the statute:
§922(g)(3) automatically divests an individual of his constitutional right to bear arms the moment he becomes an unlawful user and until he ends his drug use — all without any pre-deprivation process.
That was a defect, not a virtue. The Court pointedly contrasted § 922(g)(3) with subsections (g)(1) and (g)(4) — the bans on convicted felons and those “adjudicated as a mental defective” or “committed to a mental institution” — which “involve some manner of pre-deprivation process.” A conviction. An adjudication. A hearing. The constitutional through-line is unmistakable: the government must give you your day in court before it takes your arms, not after.
Rahimi Already Pointed the Way
This builds on United States v. Rahimi, 602 U.S. 680 (2024), where the Court upheld disarming a man subject to a domestic-violence restraining order. The holding was narrow and process-bound:
An individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment.
Found by a court. The Chief Justice even flagged, in a footnote, that the objections to that statute “appear to sound in due process rather than the Second Amendment” — but declined to reach the question because Rahimi never raised it. Hemani picks up the thread Rahimi left dangling and insists that process come first.
The Red Flag Problem
Lay these principles against a typical red flag statute and the conflict is obvious. The order issues first; the firearms vanish; the hearing, if it comes, comes later. That is deprivation before process — the precise sequence the Fifth and Fourteenth Amendments forbid when they bar the government from taking “life, liberty, or property, without due process of law.” Hemani adds a second demand these laws struggle to meet: an individualized finding. The Court faulted the government for not caring “whether his drug use has ever made him a danger to himself or others,” refusing to let a categorical label substitute for proof about the particular person. Red flag petitions, built on allegation and prediction rather than an adjudicated finding of present dangerousness, run headlong into both requirements.
I have argued for years that dangerousness must be proven, not asserted, and that the Constitution fixes the order of operations: hearing, then deprivation. Hemani now says so in the Supreme Court’s own words. Litigators in the blue states fighting these confiscation regimes have a new and authoritative tool, and they should use it. The decision freed one marijuana user. Its reasoning may yet free the rest of us from a generation of due-process shortcuts.
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.