The Supreme Court has affirmed a ruling that marijuana users do not forfeit their Second Amendment right to bear arms.

In a 9-0 decision in United States v. Hemani the Court held that the government's prosecution of Ali Hemani under 18 U.S.C. § 922(g)(3)—the federal ban on gun possession by an "unlawful user" of a controlled substance—violated the Second Amendment as applied to him.  Hemani was a guy who smoked marijuana a few times a week and kept a Glock 9mm in his house. FBI agents executing an unrelated warrant found the gun, some marijuana, and a small amount of cocaine; the government indicted him solely on the marijuana use and never tried to prove he was impaired, addicted, or dangerous when he possessed the firearm. 

The government conceded the easy part of the Bruen framework: § 922(g)(3) burdens conduct that is presumptively protected by the Second Amendment, since it bans an entire class of people from possessing a firearm for any purpose. So the fight was over historical justification. The government's best analogy was to founding-era laws disarming "habitual drunkards," which it argued have deep historical roots. Gorsuch wasn't buying the fit. Those laws targeted a narrower group, through a different mechanism, tied much more closely to actual impairment than a status-based ban that attaches the moment someone uses any controlled substance, in any amount, for any reason, and never lifts until that status changes—regardless of whether the person has ever been dangerous with a gun in his life.

Court Rejects Government Hypocrisy re Cannabis

The Court noted, somewhat pointedly, that the same federal government asking the courts to treat marijuana users as categorically and unusually dangerous has spent the last several years moving marijuana from Schedule I to Schedule III precisely because it poses comparatively low risk of abuse and dependence. You can't have it both ways: dangerous enough to strip a constitutional right by status alone, but not dangerous enough to keep in the most restrictive drug category. That tension did a lot of work in this opinion, and it is worth remembering that the tension is specific to marijuana and will not likely apply to users of other controlled substances. 

Users of Other Drugs Are Not Likely to Benefit

The Court did not strike § 922(g)(3) down on its face, and it went out of its way to say what it was not deciding: prosecutions of addicts, prosecutions of people who are presently intoxicated, prophylactic bans tied to drugs Congress has determined actually carry special firearm-related risk, the felon-disarmament provision in § 922(g)(1), and prosecutions accompanied by individualized proof that a defendant's drug use makes him dangerous. This is an as-applied win on a thin factual record, not a categorical rule.

What This Means Going Forward

This case will not likely have a huge impact on prosecutions in the Eastern District of North Carolina, because indictments for unlawful possession of firearms solely on the basis of drug use are rare. However, this case has important language supporting court acceptance of cannabis as a controlled substance that is not, in fact, the same as meth, cocaine, and heroin. This appears to be another appropriate step toward de-stigmatizing cannabis users, and will probably be a welcome relief for casual cannabis users, whose numbers appear to have proliferated in recent years with fast growth in the consumable hemp products space.