U.S. v. HEMANI, PART I:
THE UNANIMOUS DECISION
By
Prof. Anthony Michael Sabino
For nearly six decades, federal law has prohibited firearms possession by “unlawful user[s] of…any controlled substance.” 18 U.S.C. § 922(g)(3). In United States v. Hemani, 608 U.S. ___ (No. 24-1234) (June 18, 2026) (“Hemani”), a unified Supreme Court ruled that statute violates the Second Amendment, at least as applied to an individual who admitted to using marijuana a few times a week.
Here, in Part I, we set forth the main opinion, while reserving analysis of the three concurrences for Part II.
Marijuana and Firearms
Hemani’s introduction is succinct; the respondent uses marijuana a few times a week, and, for that reason alone, the government asserts that he was prohibited from possessing a firearm. “This case poses the question of whether the government’s prosecution of Mr. Hemani is consistent with the Second Amendment.”
Hemani was born and resides in Texas, lives with his parents, and has a job. The respondent is also a dual citizen of the U.S. and Pakistan. For reasons left unexplained, he and his family came under suspicion of terrorism-related activities. Nothing came of the investigation, but, during its pendency, Hemani surrendered a firearm kept in his home, admitted to marijuana possession, and, significantly, volunteered that “he used marijuana ‘about every other day.’”
As for the law, the Gun Control Act of 1968 bans the possession of firearms by, among others, convicted felons, fugitives, perpetrators of violent domestic crimes, and, relevant here, anyone who is an unlawful user of or addicted to a controlled substance. Infra. Yet that criminal proviso relies upon the Controlled Substances Act of 1970 for the definition of a “controlled substance,” see 21 U.S.C. § 802, and the CSA’s five schedules of regulated narcotics. Id. at § 812. See also Gonzales v. Raich, 545U.S. 1 (2005).
The respondent was indicted on a single count of allegedly violating Section 922(g)(3). Notably, he was never accused of being a drug addict or that he was a danger to himself or others. In short, “the government did not claim Mr. Hemani had done anything with his gun other than possess it in his home.”
The Second Amendment
Writing for the Court, Justice Gorsuch commenced from well-established ground; the Constitution guarantees an individual Right to Keep and Bear Arms, but that freedom is not without limitation. See District of Columbia v. Heller, 554 U.S. 570 (2008). But “when the government crosses the line from permissible regulation into unconstitutional infringement, courts have a duty to say so,…no less in the Second Amendment context than in any other.” See New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022).
When constraints on firearms are challenged, the first question to be asked is whether the activity to be regulated is encompassed by the Right to Keep and Bear Arms. “If so, the Constitution ‘presumptively’ protects it,” and it is the sovereign’s burden to demonstrate that the restriction is consistent with the Nation’s historical tradition of firearms regulation. Id.
To meet that threshold, the government need not adduce historical twins or exact precursors. See U.S. v. Rahimi, 602 U.S. 680 (2024). But it must demonstrate that the contemporary regulation is relevantly similar to historical analogues which are firmly established in American history.
The “Historical Analogues” Standard
Justice Gorsuch acknowledged that the Supreme Court has yet to make an exhaustive survey of the characteristics which render a modern firearms law relevantly similar to a historical constraint. Nonetheless, the high bench has identified two necessary points of comparison: the “why,” in other words, a law’s purpose, and the “how,” which equates to the operation of a challenged statute.
Here the unanimous Court decreed that the more a modern firearms restraint “mirrors a well-established analogue” in both respects, the more likely the former shall be found to be constitutional. Conversely, the greater the current regulation deviates from traditional legislation, the less likely it will survive scrutiny.
In the case at bar, the government’s choice of historical analogues were so-called “habitual drunkard” laws, which date back to the Founding, if not earlier. Given their deep roots in the Nation’s legal tradition, the prosecutors averred these statutes made apt comparators to the modern proscription.
“Habitual Drunkard” laws fail to match
The united Court did not mince words. “We disagree.”
Notwithstanding a twofold concession that drugs and firearms can make for a combustible mix, and that many present-day narcotics were unknown in early America, the supreme bench clearly enunciated that none of this altered the immutable truth that the Second Amendment can, and must, apply to circumstances beyond those specifically anticipated by the Founders.
First, Justice Gorsuch expounded that habitual drunkard statues were not homogeneous. “In truth,” they comprised three distinct categories: vagrancy restrictions, civil-commitment statutes, and surety laws. All three “had little to do with protecting the public from categorically violent and unusually dangerous persons,” while the imposition of a surety “did not normally require a showing that an individual posed a threat of violence.”
Rather, habitual drunkard laws focused upon those who abused alcohol to the extent that they were “practically incapacitated and incapable of managing their affairs,” with little or no impact upon regular or even frequent drinkers. Justice Gorsuch then posited a rather impressive roster of Founders who were known to imbibe. “Had habitual drunkard laws applied to those who simply drank regularly, many notable early Americans could have faced trouble.”
In contradistinction, Section 922 “sweeps in large numbers of people without regard to whether their substance use has the kind of incapacitating effect on them that historical habitual drunkard laws normally required.” The fact that in the instant case it was never alleged that the respondent was incapable of managing his affairs or posed “a risk to himself” or his family vividly illustrated the disconnect between the present statute and the selected historical analogues.
Lack of Process
The Justices were likewise troubled that the statutory prohibition automatically revokes the Right to Keep and Bear Arms from the first moment an individual unlawfully uses drugs until that use ceases—“all without any pre-deprivation process.” In contradistinction, its purported historical ancestors “usually provided some form of process before an individual lost any of his liberties, even temporarily.” Indeed, in a neat parenthetical, Justice Gorsuch denominated the subsections of the current proscription which first require a conviction or other adjudication prior to a denial of Second Amendment rights.
Marijuana Today
The high Court identified “one more problem” (actually two) with the government’s arguments. First, the existing ban is wholly reliant upon the Controlled Substances Act to define illegal narcotics. But the CSA outlaws drugs for a variety of reasons, some “having little or nothing to do with [the drug’s] potential to induce violence.” It is therefore “far from obvious” that the criminal statute “confines its reach to [persons] who are categorically and unusually dangerous.”
Second, during the pendency of the instant litigation, marijuana was notably repositioned to a less egregious category within the CSA’s hierarchy. Add to that a marked decline in federal efforts to police the drug, and the legitimization of the substance, at least to some degree, by a majority of the States.
“Whatever one thinks of these developments,” the fact remains that the government itself has been a catalyst for this tectonic shift. “All of which leaves it awkwardly positioned to suggest that the millions of Americans who now regularly use marijuana are categorically and unusually dangerous.”
For reason of these incongruencies, the supreme bench declined to afford the government sweeping power to designate any group as too dangerous to exercise its Right to Keep and Bear Arms. Any other outcome would “quickly swallow” the Second Amendment. Quoting Kanter v. Barr, 919 F.3d 437, 465 (7th Cir. 20129) (Barrett, J., dissenting).
Conclusion
Hemani’s closing was equal parts circumspect and forceful. As to the former, the unanimous Court cautioned that this was a narrow holding, which left untouched a plethora of other federal statutes, including the vast remainder of Section 922’s proscriptions against firearms possession by certain classes of people.
The latter was evinced by Justice Gorsuch’s unequivocal rejection of the prosecutors’ solitary and “surely ambitious” theory that Section 922 empowered the government to strip Hemani of his Second Amendment rights, and it made “no difference either if [the respondent] keeps a firearm only in his home for self-defense, never misuses a gun while intoxicated, and never poses a danger to himself or others as a result of his marijuana use.”
That “expansive” presumption utterly fails “under every measure,” for reason that the government relied upon historical analogues which targeted different people, for different reasons, and operated differently. Accordingly, Hemani remained a free man; moreover, he retained his Right to Keep and Bear Arms.
The next Second Amendment case
As fate would have it, less than two weeks after Hemani was decided, the high bench consented to hear yet another Second Amendment controversy. See Viramontes v. Cook County, Illinois, cert. granted, ___ U.S. ___ (No. 25-238) (June 30, 2026) (challenging a local ban on the ubiquitous AR-15 platform). Undoubtedly, the unanimous decision crafted by Justice Gorsuch shall play a significant role in that upcoming adjudication. And so shall Hemani’s three concurrences, which justifies our discussion thereof in Part II.
Prof. Anthony Michael Sabino, partner, Sabino & Sabino, P.C., is also a Professor of Law, Tobin College of Business, St. John’s University. Anthony.Sabino@sabinolaw.com