We won United States v. Hemani nine to zero, and I am grateful for the result. The Supreme Court held that the federal ban on gun possession by users of illegal drugs, 18 U.S.C. § 922(g)(3), cannot be applied to a man whose offense was using marijuana. That is a victory for the Second Amendment. But the more important story is how we got there, because the government should never have brought this case at all — and the lesson matters more than the win.
The Vehicle the Government Chose
Recall who lost. The Solicitor General, D. John Sauer — the officer who controls the federal government’s Supreme Court docket, so influential he is often called “the Tenth Justice” — asked the Court to take Hemani and reinstate the prohibition. The Department of Justice under then–Attorney General Pam Bondi chose this case as the vehicle to defend § 922(g). And it chose poorly, or perhaps too well: Hemani was an unlawful drug user, a dual citizen under federal investigation for suspected ties to the Iranian Revolutionary Guard, about as unsympathetic a defendant as the criminal docket offers. A government hoping to persuade the Court to uphold a gun ban could not have designed a better set of facts. That is precisely why pushing this case was a betrayal of the right the administration claims to champion.
The Trap of Outcome Bias
Here is where discipline matters. It is tempting to look at a 9-0 result and conclude the gamble was brilliant. That is outcome bias — judging a decision by how it happened to turn out rather than by whether it was sound when it was made. A team that wins on a desperate last-second heave did not thereby prove that heaving the ball is a strategy. We walked through a minefield and were not blown up. The correct response is relief, not a plan to do it again. Bad facts make bad law, and the only reason they did not make bad law here is that the Court declined to take the bait. Build a movement on luck and the luck eventually runs out.
The Case They Should Have Protected
Contrast the defendant the government chose with the kind of plaintiff it should be championing. Bryan Range pleaded guilty in 1995 to a Pennsylvania misdemeanor for understating his income on a food-stamp application. He never spent a day in jail. Decades later that stale offense was treated as a lifetime bar on owning a firearm under § 922(g)(1). The en banc Third Circuit ruled for him in Range v. Attorney General United States, 124 F.4th 218 (3d Cir. 2024), and his rights were restored. Range is the face of the Second Amendment as it should be litigated: an ordinary, peaceable American crushed by a categorical statute. When the Department spends its credibility at the Court, that is the profile it should put before the Justices — not a defendant the Court is predisposed to distrust.
A Signal From the Court
The Justices appear to be sending exactly that message. In Whitton v. Dixon, No. 25-580 (U.S. June 1, 2026), the Court granted summary relief to a Florida death-row inmate over a technical Eleventh Circuit error. Justice Thomas, joined by Justice Alito, dissented:
It is unfortunate that the Court here chooses to intervene at the request of a convicted murderer to correct the Eleventh Circuit’s inconsequential foot fault. What makes it even worse is that the Court does so even while it refuses to correct far more consequential errors for law-abiding citizens.
Thomas pointed to petitions the Court had turned away that would have vindicated ordinary Americans, and faulted his colleagues for rescuing criminals while leaving law-abiding citizens to suffer lower-court defiance of Supreme Court precedent. No one familiar with the post-Bruen record needs to ask which body of law he had in mind. The signal grew louder days later, when the Court denied review in United States v. Cockerham, No. 24-60401 (5th Cir. 2025) — a Fifth Circuit decision restoring the rights of a non-violent felon whose only offense involved unpaid child support. The Solicitor General asked the Court to take it; the Court refused, leaving the pro-Second Amendment ruling intact. Refusing the government in a § 922(g) case is not routine.
The Lesson
Read together, these moves describe a Court that is tired of deciding the Second Amendment through the cases of criminals and would rather develop the right through sympathetic, law-abiding plaintiffs. That is the lesson the Department of Justice should absorb. Solicitor General Sauer is not an enemy of the right to keep and bear arms, and neither is Deputy Attorney General Todd Blanche, now serving as acting Attorney General and the President’s nominee for the post. But good intentions are not a litigation strategy. We won at the roulette table this time. The way to protect this right for the long run is to stop betting on bad facts and start bringing the Court the plaintiffs it is plainly waiting for.
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.