Why It Matters

A recent CRS report on a Supreme Court decision striking down prosecutions of marijuana users under federal firearms law has immediate implications for how the Justice Department enforces drug-related gun bans and what Congress might do next.

On June 18, the Supreme Court ruled in United States v. Hemani that prosecuting the defendant based solely on his use of marijuana "a few times a week" without proof of relevant individual circumstances violated the Second Amendment. The decision creates a narrow opening for legislative action while constraining federal prosecutors' current toolkit. For the administration, it arrives as the Justice Department has already moved marijuana to a less restrictive drug schedule. For Congress, it signals where future firearms policy might need to go if lawmakers want to restrict gun possession by drug users.

The Big Picture

The case centered on 18 U.S.C. § 922(g)(3), which prohibits any person who is an unlawful user of or addicted to any controlled substance from possessing firearms or ammunition. The defendant used marijuana a few times a week and possessed a firearm in his home, which was securely stored. He posed no demonstrated danger. Federal prosecutors charged him anyway, relying on the statute's categorical ban.

A seven-justice majority, authored by Justice Gorsuch, applied the history-based test from New York State Rifle & Pistol Association, Inc. v. Bruen (2022), which requires the government to demonstrate that a firearms regulation is consistent with the nation's historical tradition of firearm regulation. The Court found the government's historical analogue, namely colonial-era habitual drunkard laws, insufficient. Those laws covered people practically incapacitated and unable to manage their affairs and generally provided some process before liberty deprivation. By contrast, § 922(g)(3) requires no process and covers anyone who regularly uses any controlled substance, regardless of frequency or effect.

The Supreme Court highlighted that the government's theory in United States v. Hemani would extend to a husband who regularly takes his wife's prescription Ambien to sleep and a college student who routinely uses a friend's Adderall to cram for exams. The ruling does not disturb prosecutions of addicts or those presently intoxicated, and does not foreclose § 922(g)(3) prosecutions supported by individualized proof that the defendant is dangerous due to drug use.

Federal prosecutors can no longer rely on a categorical approach to § 922(g)(3) for marijuana users. Lower courts will need to determine what level of drug use or what circumstances would justify the firearm prohibition under the Second Amendment. Litigants may apply the Court's historical analysis to other prohibited-person categories in § 922(g).

The Bottom Line

Congress retains authority to enact more narrowly tailored legislation targeting drug users who pose a genuine danger, and the Court explicitly recognized room for legislative action. The Court does not address other prophylactic laws Congress might adopt after determining that users of a particular drug pose a special risk of misusing firearms. Todd Blanche, then Acting Attorney General, signed a final rule in April moving marijuana to Schedule III. On June 29, 11 days after the Hemani decision, a DEA Administrative Hearing began to evaluate the broader proposal to move general marijuana from Schedule I to Schedule III.

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