What’s at Stake in Hemani? Supreme Court Grants Cert to Review Federal Restriction on Drug Users

Yesterday, the Supreme Court granted cert in United States v. Hemani, meaning that—in light of the grant in Wolford v. Lopez—the Justices will now have at least two Second Amendment cases this Term. Wolford raises some hard questions about locational restrictions on the right to keep and bear arms; Hemani does the same for laws forbidding gun possession by particular classes of people.

Hemani is one of several recent petitions involving challenges to 18 U.S.C. § 922(g)(3), the federal provision which prohibits firearm possession by anyone who is “an unlawful user of or addicted to any controlled substance.” Hemani, like many other cases challenging the constitutionality of § 922(g)(3), involves the unlawful use of marijuana—but also cocaine and prescription drug abuse. The constitutionality of that prohibition has become the subject of a rapidly growing circuit split regarding how to resolve as-applied challenges to § 922(g)(3).

In August 2024, the Fifth Circuit held in United States v. Connelly that history and tradition “do not support disarming a sober person based solely on past substance usage.” It concluded that the government must prove a defendant was “intoxicated at the time” of possessing a firearm to constitutionally apply § 922(g)(3). In Hemani, decided in January 2025, the Fifth Circuit simply applied the holding in Connelly to dismiss Hemani’s indictment under § 922(g)(3).

In February 2025, the Eighth Circuit held in United States v. Cooper that “[n]othing in our tradition allows disarmament simply because [a defendant] belongs to a category of people, drug users, that Congress has categorically deemed dangerous.” It adopted a different test for when § 922(g)(3) is constitutional, requiring the government to demonstrate that a defendant’s drug use caused them to “pose a credible threat to the physical safety of others”, “act like someone who is ‘both mentally ill and dangerous’”, or “induce terror.”

In July 2025, the Third Circuit held in United States v. Harris that “history and tradition justify § 922(g)(3)’s restrictions on those who pose a special danger of misusing firearms because they frequently use drugs.” Remanding for a determination of whether the defendant posed a special danger because of his drug use, the Third Circuit instructed the district court to make an individualized, probabilistic judgement “based on the nature of [his] drug use and the risk that it will impair his ability to handle guns safely of danger.”

In early August 2025, the Sixth Circuit held in United States v. VanOchten that “§ 922(g)(3) can be applied to dangerous drug users consistent with the Second Amendment” because it “reflects a congressional attempt to ‘keep guns out of the hands of presumptively risky people.’” It explained that each drug user must still have the “opportunity to make an individualized showing that he himself is not actually dangerous,” and that an individual’s criminal record can be relevant in determining if they “presently pose[] a clear risk to others if armed.”

In late August 2025, the Tenth Circuit held in United States v. Harrison that “historical tradition supports a principle that legislatures may disarm those believed to pose a risk of future danger.” In doing so, it relied notably on colonial and revolutionary era laws disarming Catholics and loyalists – which the Fifth Circuit rejected as historical analogies to § 922(g)(3) in Connelley. The Tenth Circuit chose to remand to the district court to determine whether a non-intoxicated marijuana user poses a risk of future danger.

In September 2025, the Seventh Circuit held in United States v. Seiwert that disarming a defendant who was “persistently and presently impaired . . . is relevantly similar to our tradition of confining and disarming persons suffering from severe mental illness.” It declined, however, to draw an analogy between § 922(g)(3) and laws disarming individuals who present a risk of danger.

In its Hemani petition, the federal government argues that the Fifth Circuit’s test for § 922(g)(3) conflicts with precedent, historical tradition, and common sense. It points to founding-era laws restricting the rights of drunkards—“people who habitually abused alcohol”—and asserts that “habitual drug users have a demonstrated propensity to violate the criminal law.” Specifically, it asserts that “the physiological, cognitive, and mood-based effects of many illegal drugs . . . present grave risks of firearm misuse,” that drug users commit crime to obtain money to buy drugs and “thus pose a danger of using firearms to facilitate such crime,” and that “violent crime may occur as part of the drug business or culture.”

The government also argues that § 922(g)(3) complies with the Second Amendment because it imposes a temporary, limited burden on the right to keep and bear arms. Relying on the present-tense “is” in the text of the law, it concludes that “restriction lasts only as long as the habitual drug use continues” and thus that the habitual drug user “always has the option of restoring his own right to keep and bear arms simply by forgoing the habitual use of unlawful drugs.”

Finally, the government suggests that 18 U.S.C. § 925(c), which creates an executive process for gun-rights restoration and has been recently revitalized, now provides the appropriate mechanism for addressing concerns about the application of § 922(g)(3) in specific cases. 

In his response, Hemani argues that the Fifth Circuit correctly applied Bruen and Rahami in developing its § 922(g)(3) test by concluding that “the government failed to identify any class of persons at the Founding who were ‘dangerous’ for reasons comparable to marijuana users.” He disagrees with the government’s interpretation of § 922(g)(3) as being temporarily restricted to active users and notes that the term “habitual drug use” is found nowhere in the section. He also asserts that the process available under § 925(c) has “no bearing on whether § 922(g)(3) is constitutional as applied to [him].”

Hemani thus offers the Court an opportunity to further elaborate its holding in Rahimi regarding the historical “principles” that permit disarming particular groups of people, as well as address for the first time the constitutional relevance, if any, of § 925(c) under the Bruen framework.