SCOTUS to hash out how the founders would handle gun-wielding drug users

WASHINGTON (CN) — Federal gun regulations are on the chopping block at the Supreme Court next week as the justices consider whether the founders would have disarmed habitual drunkards.

The Trump administration says they would have, submitting its historical analysis in favor of upholding modern regulations prohibiting drug users from owning firearms.

“Early American legislatures recognized that habitual drunkards present heightened dangers of crime and violence,” U.S. Solicitor General John Sauer wrote. “They classified drunkards as criminal vagrants subject to confinement in jail or workhouses, committed drunkards to lunatic asylums, and subjected drunkards to surety laws backed by threat of jail — burdens even more severe than those imposed by Section 922(g)(3).”

The statute criminalizes gun possession for “an unlawful user” of any controlled substance. Swapping drunkards for drug users, the Trump administration says the law should be upheld, noting that federal and state laws have restricted illegal drug users’ rights “for as long as that social evil has plagued America.”

But a Texas man says he was charged under the statute even though he only consumed marijuana a few days a week — far from habitually abusing the substance. Ali Danial Hemani, who was indicted after federal investigators found a Glock 19 9mm pistol and marijuana in his family home, said Congress never defined “unlawful users.”

Hemani warned that the government’s “habitual user” substitution cast too wide a net, encompassing anyone who regularly uses drugs instead of serial abusers.

“Indeed, if ‘habitual drunkard’ had been broad enough to encompass anyone who drank beer, wine or spirits with meals a few days a week, then by the government’s logic much of the founding generation — not to mention tens of millions of Americans today — could have been deprived of the right to keep a firearm in the home for self-defense,” Hemani’s attorneys wrote.

The founding-era tavern trivia is playing out thanks to the Supreme Court’s Second Amendment history test. In NYSRPA v. Bruen , the court held that gun regulations must be historically analogous. In 2024, the court ruled that domestic abusers could still be disarmed under the new historical standard in

.

United States v. RahimiUnited States v. Hemani asks whether certain groups who present a special danger of misuse can be barred from gun ownership. Unlike Rahimi ’s individualized judicial determination of dangerousness, legal experts said Hemani considers a purely legislative determination about a class of persons.

Last month, the Trump administration asked the court to strike down Hawaii’s default prohibition requiring gun owners to receive permission to carry on private property. Now, the White House finds itself on the opposite side of the ledger, arguing in favor of tighter gun restrictions.

Both sides agree the gun rights of presently intoxicated individuals can be limited. The Trump administration says historical tradition supports the disarmament of habitual drug users, even in between bouts of intoxication.

“Since the founding era, legislatures have restricted the rights of habitual drunkards — a category closely analogous to habitual drug users,” Sauer wrote. “That body of historical laws is, if anything, even more robust than the tradition of disarming presently intoxicated individuals.”

The government cites three types of anti-drunkard laws in support: criminal vagrancy laws, civil-commitment laws and surety laws. States classified drunkards as vagrants, a crime punishable by jail or confinement in a workhouse. Civil-commitment laws allowed drunkards to be committed to asylums or placed in the custody of guardians. And surety laws allowed justices of the peace to compel anyone who posed a risk of future misbehavior to post bond or face jail time.

Hemani said the justices need not undergo a history lesson to settle the dispute because the vagueness of “unlawful user” should doom the statute. Even the government, Hemani argued, does not define the contours of which drug users should fall under the statute.

“Is someone who uses a controlled substance once a year ‘an unlawful user?” his lawyers wrote. “What about someone who uses that substance every six months, or every two weeks? Or who does not have a regular practice of using controlled substances but will occasionally do so in a social setting? Does it matter how much one consumes, or only how frequently one does so? The statute does not say.”

Over half of Americans live in jurisdictions where they can obtain marijuana recreationally — and nearly three-quarters of Americans can access the drug medicinally. Given the substantial overlap between people who use marijuana and those who possess firearms, Hemani said the government would have discretion to incarcerate too many people for common behavior.

“Because the scope of §922(g)(3)’s ‘unlawful user’ prong is discernible only through ‘guesswork,’ it is unconstitutionally vague,” Hemani’s attorneys wrote. “‘[T]he role of’ this court thus ‘is not to fashion a new, clearer law to take its place,’ but to treat the provision ‘as a nullity and invite Congress to try again.’”

Hemani also dismissed the government’s historical analogies, noting that founding-era laws only prohibited carrying or using firearms, not keeping them in the home.

“Historical laws that punished carrying or using a firearm while intoxicated cannot begin to support modern laws that criminalize mere possession by people who are not intoxicated,” Hemani’s lawyers wrote. “Indeed, if those laws could justify stripping Mr. Hemani of his right to keep a handgun safely stored in the home for self-defense, then they could equally justify stripping that right from anyone who frequently has a glass of wine with dinner unless and until they forswear alcohol altogether.”

The Supreme Court will hear arguments in Hemani’s case on Monday.

Subscribe to our free newsletters

Our weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.