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The Supreme Court expressed skepticism Monday about the federal government’s law banning people with a "habitual use" of marijuana from legally possessing a firearm, a Second Amendment case that could test the limits of creating exceptions to gun ownership.
But in two hours of spirited oral arguments over "guns and ganja," several justices — while seeing marijuana smokers as potentially less serious — expressed concern about allowing drug addicts and other illegal substance users who might pose a danger to society to have those weapons.
A narrow ruling appears likely and might apply only to the person at the center of the dispute and other regular marijuana users who would not pose a danger to society by having a weapon in their home.
At issue is whether the widespread use of cannabis in recent decades — where it is legal in some form in 40 states — makes criminalizing "mere possession" contingent on gun ownership.
The same law was applied to former President Joe Biden’s son, Hunter Biden, who was convicted under Section 922(g)(3), which bars any "unlawful user of or addicted to any controlled substance" from possessing a firearm.
The current case involves a Texas man charged with a felony after FBI agents raided his home and found a handgun. The suspect admitted smoking marijuana every other day.
Several on the high court worried about the implications of giving federal prosecutors overly broad discretion to charge someone for being a "drug user."
"We don't even know the quantity of how much he uses every other day. What if he took one [THC-laced] gummy bear with a medical prescription," asked Justice Neil Gorsuch. "He had one to help him sleep every other day. Disarm him for life?"
"It's the lawfulness," said Justice Amy Coney Barrett. "With the marijuana, I just don't see anything in the scheme that actually reflects Congress's judgment that this makes someone more dangerous."
But Chief Justice John Roberts said it was Congress that decided marijuana should be classified as a "controlled substance," despite what other jurisdictions decide.
"There's a broad range of determinations like that where we leave the question of its addictive difficulties and the consequences of that to a determination by the legislature with the Schedule 1, Schedule 3 [illegal drug classifications] and all that, and in each case, you don't get to reweigh the legislative determination."
The Supreme Court in 2022 expanded gun rights, requiring that modern laws have a strong basis in the country’s history and tradition. That precedent will be closely considered in the current appeal.
Among other things, it has been used to allow people to bring licensed, loaded handguns in public under so-called "concealed carry" laws.
But the conservative court has also upheld federal restrictions allowing those under domestic violence restraining orders to be disarmed.
Cannabis is illegal at the federal level, but President Trump signed an executive order to speed up the process of reclassifying it as a less dangerous substance.
The current administration has supported expanded gun rights, but in this case, it says mixing firearms and controlled substances justifies the current restrictions.
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"The Second Amendment does not prohibit the government from temporarily disarming habitual marijuana users while they persist in frequent use," Justice Department attorney Sarah 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."
The case began in August 2022, when federal agents executed a search warrant at the Lewiston, Texas, home of Ali Danial Hemani as part of a broader criminal investigation.
He admitted keeping a Glock 9 mm pistol, which he purchased legally and kept securely in the home. Agents also found approximately 60 grams of marijuana and 4.7 grams of cocaine.
Based on these findings, federal prosecutors indicted Hemani — a dual U.S.-Pakistan citizen — for violating federal law that criminalizes firearm possession by those with "persistent" use of a controlled substance, although he was never accused of using the drugs while armed. The case centered on his habitual use of marijuana alone.
Hemani faces up to 15 years in prison if convicted. A federal appeals court eventually dismissed the indictment, prompting a Justice Department petition to the high court.
His lawyers said Hemani was being unfairly targeted over gun possession because of unproven terrorist ties and a marijuana habit for which he was never prosecuted.
A major part of the courtroom public session dealt with how "drug user" should be properly defined and how it could be applied to both gun ownership and possession.
Several hypotheticals were raised about whether the federal gun restrictions could include the use of sleeping tablets, anabolic steroids and Adderall — an amphetamine used to treat ADHD and narcolepsy — and whether they could apply to drug users who are homeless or own cars.
Gorsuch suggested that linking historical laws passed at the country's founding restricting gun use for habitual drunkards to today’s marijuana users was not applicable.
He used so-called "Founding Fathers" John Adams, James Madison, and Thomas Jefferson as examples of heavy alcohol users.
"Thomas Jefferson said he wasn't much a user of alcohol, he only had three or four glasses of wine a night, okay? Are they all habitual drunkards who would be properly disarmed for life under your theory?" Gorsuch asked the government lawyer.
"The government has not been able to define what a user is," he added. "I mean, it has said at various points that it's someone who's used any illegal drug in the past year, right?"
Justice Samuel Alito pushed back, speaking for more than 15 minutes about the difficulty of using a case-by-case approach to prosecute a "drug addict" under this law.
"I struggle to figure out how these individualized determinations can be made in the context of a criminal prosecution," said Alito. "The way in which criminal prosecutions are conducted makes this extremely difficult."
"Suppose someone regularly takes a drug, and during the period when that person is taking the drug, that person is super dangerous," Alito continued. "The Second Amendment would not permit Congress to say that's too risky?"
The Hemani case has created unusual legal and political alliances. The National Rifle Association and Gun Owners of America, along with the ACLU and Drug Policy Alliance, are separately supporting the defendant.
Backing the federal government is a coalition of 19 mostly Democratic-run states led by Illinois, along with the Brady Center to Prevent Gun Violence.
The Supreme Court earlier this term heard a challenge to a Hawaii law that prohibits carrying firearms on private property open to the public without the owner's express permission.
The 6-3 conservative majority there appeared ready to strike down that and similar laws.
The current case is U.S. v. Hemani (24-1234). A ruling is due by early summer.
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