Should Illegal Drug Use Cost Someone Their Gun Rights? SCOTUS Appears Skeptical - The Trace

On March 2, the Supreme Court heard oral arguments in a case challenging the federal ban on gun possession by people who use illegal drugs. Several justices appeared skeptical that the ban passes constitutional muster — especially when it’s enforced against marijuana users.

The court’s decision could affect hundreds of other challenges pending in lower federal courts. It could also prevent states from enforcing similar bans, depending on how broad the final ruling is.

The case began in Texas, where Ali Danial Hemani was charged with using marijuana while possessing a firearm. The 5th Circuit Court of Appeals threw out the indictment as unconstitutional under the Supreme Court’s landmark 2022 decision in New York State Rifle and Pistol Association v. Bruen, which held that modern gun regulations must be consistent with the nation’s historical tradition of firearm regulation. The decision triggered a wave of litigation against gun laws, with hundreds of challenges targeting the federal drug-user ban. The ban applies to users of any drug considered illegal under federal law, including not only marijuana but also heroin, cocaine, and methamphetamine, as well as certain pharmaceuticals used without a prescription.

Trace staff writer Chip Brownlee discusses United States v. Hemani on NPR’s Here & Now.

The Trump administration asked the Supreme Court to review the 5th Circuit’s ruling. During the oral arguments, the justices peppered the government with questions suggesting they were uncomfortable with the extent of the ban. “They were more skeptical, honestly, than I expected,” Hayley Lawrence, executive director of the Duke Firearms Law Center, told The Trace. “It seems like the government has Justice Samuel Alito and Chief Justice John Roberts on its side, but I’m not certain about anybody else.”

Principal Deputy Solicitor General Sarah Harris argued that temporarily disarming people who habitually use controlled substances fits within historical traditions of restricting access to arms for groups thought to present heightened public-safety risks. To justify the ban under Bruen’s history-and-tradition test, Harris pointed to “habitual drunkard” laws from the Founding Era as historical analogs. Under those laws, habitual drunkards could be required to post surety bonds or be civilly committed or imprisoned based on the belief that, as a group, they posed a threat to public safety. She said the modern gun ban is more tailored and less restrictive but similar in principle.

“The Second Amendment does not prohibit the government from temporarily disarming habitual marijuana users while they persist in using frequently,” Harris told the court. “That tailored restriction easily fits within the historical tradition of disarming categories of people who present a special danger of misuse.”

Hemani’s attorney, Erin Murphy, countered that the “habitual drunkards” statutes were aimed not at ordinary or even frequent drinkers, but at people whose substance abuse was so severe that it resulted in incapacity or loss of self-control — even when they were not actively intoxicated. Under that analogy, Murphy said, the federal government cannot justify disarming someone merely for using marijuana a few times a week.

Although the case centers on marijuana, Harris warned that accepting Murphy’s position could effectively neutralize the law, allowing users of heroin, methamphetamine, and other illegal drugs to possess guns. “I really don’t know how that would hold up,” Harris said. “What they seem to be saying is actually — even for categories like heroin, like PCP, whatever it is — you still would have to have a chance to say what is your frequency, what is your mix of drugs, what are other things that make you dangerous? I think all of it collapses.”

The case has scrambled familiar political alignments. Gun rights groups — including the National Rifle Association, Firearms Policy Coalition, and Gun Owners of America — have gone against the Trump administration and filed briefs urging the court to strike down the ban. They have been joined by public defenders and by advocates of civil liberties and criminal justice reform. Meanwhile, gun reform organizations like the Giffords Law Center and the Brady Campaign, which are usually at odds with the Trump administration, want the justices to keep the ban in place.

Justice Amy Coney Barrett pointed to United States v. Rahimi, a 2024 decision clarifying

Bruen. In it, the justices said modern laws need not be exact “twins” of historical regulations, but must at least be “relevantly similar” in principle. Applying that framework, the court said there was a tradition in American history of restricting gun access for people who pose a danger of violence or misuse of guns. During the March 2 arguments, Barrett rattled off other drugs — Ambien, Robitussen, Tylenol with codeine, testosterone, and Adderall — that could trigger the ban on gun possession if used without a prescription. “I’m not a pharmacologist, but none of those drugs strike me as drugs for which it is obvious that a risk of violence would ensue,” she said.

The court will likely release its decision by early July.

We want to know what you think about our reporting on America’s gun issue. If you have a few minutes, share your feedback in our annual survey. Take the survey →