Newsletter: SCOTUS Weighs Marijuana Gun Ban - The Reload

This week, we’ve got big legal news–nearly the biggest you can get: Supreme Court oral arguments in a Second Amendment case.

The justices just heard US v. Hemani, an as-applied challenge to the drug user gun ban by a man accused of smoking weed a couple of times a week. Oral arguments seemed to go surprisingly well for Hemani, as Contributing Writer Jake Fogleman outlines in a summary of the lengthy back and forth. Still, as Jake explains for Reload Members, there’s at least one reason to think he could still lose.

The legal action in Washington, DC, wasn’t limited to the Supreme Court. The city’s court of last resort delivered a major ruling. It found the city’s ammo magazine ban violates the Second Amendment.

Next door in Virginia, the threat of a new magazine ban alongside dozens of other gun restrictions seems to have boosted gun sales. Virginia was back in the top five nationwide as sales everywhere improved, and silencer sales continued to skyrocket.

Meanwhile, in West Virginia, gun-rights activists think they’ve found a new way past the federal ban on new civilian machinegun sales. Jake looks at the legal and political challenges it faces. Plus, down in the links, we have an update on how the legislature is reacting.

The latest episode of the podcast features three guests for the first time. All of them are involved in a new compromise gun policy effort. They try to explain why this effort is distinct from previous ones.

The Supreme Court of the United States on November 7th, 2023 / Stephen Gutowski

Does regular marijuana use render a person too dangerous to own a firearm? A majority of Supreme Court justices appeared uncomfortable with that proposition on Monday.

This morning, the High Court heard oral arguments in US v. Hemani. The case challenges the federal government’s prosecution of Ali Danial Hemani, a Texas man and admitted regular marijuana user who was found with drugs and a handgun in his home during an FBI raid, under a nearly 60-year-old statute that prohibits addicts or unlawful users of controlled substances from owning firearms. Over the course of nearly two hours of arguments, the justices trained most of their focus on the sweeping scope of the federal ban and the substances it encumbers, rather than on Hemani’s individual circumstances.

“Is it the government’s position that if I unlawfully use Ambien or I unlawfully use Xanax, then I become dangerous?” Justice Amy Coney Barrett asked. “What is the government’s evidence that using marijuana a couple times a week makes someone dangerous?”

Monday’s oral arguments in US v. Hemani suggest that the federal ban on gun possession by marijuana users is in serious trouble. But there’s reason to think otherwise.

For nearly two hours, the Supreme Court of the United States (SCOTUS) probed whether the federal ban fits within the nation’s historical tradition of firearm regulation—the constitutional test established in 2022’s New York State Rifle & Pistol Association v. Bruen. While the lawyers arguing both sides of the issue faced tough questioning from the justices on that point, the overall tenor of the discussion left the impression that as many as six or seven of the justices are, for a variety of reasons, skeptical that it does. This suggests that the Court will soon strike down another gun law on Second Amendment grounds, at least as applied to the particular defendant in this case.

However, while that may be the likeliest result, the odd coalitional divisions that arose during oral arguments raise the possibility of another outcome–one that could see the law upheld and the SCOTUS standard for judging gun laws loosened.

America’s capital has once again been violating the Second Amendment, according to a new court ruling.

On Thursday, the DC Court of Appeals found the city’s ban on magazines that hold more than 10 rounds of ammunition unconstitutional. The 2-1 ruling by the city’s court of last resort determined that the magazines are in common use and, therefore, protected by the Second Amendment. So, it tossed Tyree Benson’s conviction for violating the ban.

“Magazines capable of holding more than 10 rounds of ammunition are ubiquitous in our country, numbering in the hundreds of millions, accounting for about half of the magazines in the hands of our citizenry, and they come standard with the most popular firearms sold in America today,” Judge Joshua Deahl wrote for the majority in Benson v. US. “Because these magazines are arms in common and ubiquitous use by law-abiding citizens across this country, we agree with Benson and the United States that the District’s outright ban on them violates the Second Amendment.”

Virginians flocked to their local gun stores last month with new regulations looming on the horizon.

A new industry report released on Wednesday shows Virginia shot up the national leaderboard for the number of sales-related background checks run through the National Instant Criminal Background Check System (NICS) in February. As Democrats moved dozens of gun bills through the legislature, including an “assault weapons” ban, Virginia surged to fifth place, with over 65,000 sales-related checks, and landed just behind Texas and Florida, with 14,230 checks related to highly-regulated National Firearms Act (NFA) items–all despite having just the 12th-largest population.

Those NFA item checks continued their meteoric rise nationwide since the tax on silencers and short-barrel guns was slashed to $0, increasing 167 percent from February 2025. Sales-related NICS checks rose by about 3.5 percent year-over-year across the entire United States, according to a National Shooting Sports Foundation (NSSF) analysis of FBI data, making February just the second month in the last twelve to see an increase.

Instead of one guest, we have three. They are all members of a new initiative trying to break the decades-old logjam around gun policy. The participants from Bridging the Divide join the show to discuss how their detailed policy proposals differ from the ones our debate has centered around for years.

Dr. Michael Siegel of Tufts University, Rob Pincus of the Second Amendment Organization, and Jonathan Lowy of Global Action on Gun Violence join the show to explain their role in the project. Dr. Siegel provides an overview of the effort, while Pincus and Lowy explain the input they provided and the compromises they reached.

Plus, Contributing Writer Jake Fogleman and I recap President Trump’s latest State of the Union address, which was conspicuously light on any discussion of his administration’s gun policy approach. We discuss how to interpret that omission. We also cover documents in the Epstein Files that show the convicted sex criminal’s pursuit of gun rights restoration numerous times up until his second arrest.

After 40 years of frustration, some gun-rights advocates think they found a way for civilians to buy new machineguns without repealing any federal restrictions.

On Monday, a pair of West Virginia lawmakers introduced Senate Bill 1071. Dubbed the “Public Defense and Provisioning Act,” the first-of-its-kind bill would establish a new Office of Public Defense within the West Virginia State Police, tasked with acquiring new machineguns and making them available for sale to the general public. The weapons would include “AR-15/M16-platform, M249-type, and MP5-type machine guns,” along with any other weapon system “in common use by the military or law enforcement” that the director of the new office decides to make available.

Here’s a look at how the bill would work in practice, the legal theory underpinning it, and the political reality it faces.

Stephen Gutowski is an award-winning journalist who reports on firearms policy and politics. He is a former CNN Contributor. He has also appeared on the cover of Time Magazine and his work has been featured in every major news publication across the ideological spectrum from The Wall Street Journal to The New York Times and beyond.