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Supreme Court takes up a disarming case over gun control and marijuana use

By Mark Walsh

February 26, 2026, 8:57 am CST

An important Second Amendment case to be heard next week by the U.S. Supreme Court involves a provision of a 1968 federal gun control law and what it means for habitual marijuana users in an era when the justices are still defining the modern scope of gun rights.

But much of the briefing in United States v. Hemani takes a trip back in time—well before 1968—to the Colonial era, with discussions of laws disarming “habitual drunkards,” British loyalists, Native Americans and religious minorities.

“Historical tradition gives legislatures the power to categorically disarm certain groups of people,” says Joseph Blocher, a Duke University law professor.

Blocher joined an amicus brief of Second Amendment scholars in support of the federal government’s prosecution of Ali Danial Hemani, a Texas man who regularly used marijuana and also kept a gun at home for self-defense.

“Our history of firearm regulation is replete with examples of legislatures exercising their authority to disarm those believed to present a special danger of misuse,” says the Second Amendment Law Scholars’ brief.

These included laws covering not only habitual drunkards and even other drinkers but also those “disaffected to the cause of America”—British loyalists at the time of the American Revolution, the brief says. Some colonial legislatures also disarmed Native Americans, out of fear they would storm cities and commit murder; and Catholics, who were viewed as lacking allegiance to the British crown at the time of the French and Indian War.

“Legislatures made judgments that we rightly reject today,” says the scholars’ brief, but they were examples of legislative judgment, and “respect for legislative judgment preserves the balance set at the Founding.”

Such references to history come because of the Supreme Court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen, which struck down New York state restrictions making it more difficult for individuals to legally carry weapons for self-defense and established a “history and traditions” test for analyzing firearms regulations. The court clarified in a 2024 decision, United States v. Rahimi, that the Bruen standard requires a “relevantly similar” law rather than a “dead ringer” or a “historical twin.”

Meanwhile, groups allied with Hemani offer a different take on what history and tradition means for the challenged Gun Control Act provision on habitual drug users.

“Historical intoxication laws forbade using firearms while intoxicated,” the National Rifle Association of America says in its amicus brief, but that tradition “does not support disarming individuals when they are sober merely because they sometimes use intoxicants.”

George A. Mocsary, a law professor and the director of the Firearms Research Center at the University of Wyoming, says, “This case is important because it challenges government’s ability to declare as dangerous anyone it doesn’t like” and bar them from gun possession.

“If a marijuana user who’s not actively intoxicated can be disarmed for life, then someone who has a couple of drinks a week can be disarmed,” says Mocsary, who helped write the NRA brief. “And just taking that one step further, anyone who gets a speeding ticket can be disarmed for life because, after all, we give people speeding tickets because what they’re doing is said to be dangerous.”

Case brings out unusual alliances

Hemani, 28, was born in Texas but is a dual citizen of the United States and Pakistan whose contacts and travel in Iran have drawn the attention of the Federal Bureau of Investigation. The federal government alleges in its brief that he is “a drug dealer who admittedly used illegal drugs routinely before his arrest.”

In 2022, the FBI executed a search warrant at Hemani’s home and found marijuana and cocaine, as well as a Glock 9 mm pistol. Months later, Hemani was charged with possessing a firearm as an unlawful user of a controlled substance, in violation of the relevant provision of the Gun Control Act. (He was not charged under a separate provision barring firearms for those “addicted to” controlled substances.)

Hemani’s lawyers say in their brief that “he is a valued member of his local religious community in Dallas” and “though the government has long made ‘terrorism’-related insinuations about Mr. Hemani and his family based on their religious and ethnic identities, … neither he nor any of his family members has ever been charged with any crime in connection with those insinuations.”

A federal district court dismissed his indictment in 2024 based on a recent U.S. Court of Appeals for the 5th Circuit decision that the federal provision violated the Second Amendment because historical analogues required by Bruen did not support application of the law to habitual drug users beyond the moment of intoxication.

The federal government brought Hemani’s case to the Supreme Court, which granted review.

“The Second Amendment does not prohibit Congress from restricting the possession of firearms by habitual drug users,” U.S. Solicitor General D. John Sauer said in a brief.

There are some unusual bedfellows among the two sides in the case, with a Republican administration that generally supports robust Second Amendment rights adhering in this case to federal interests in criminal prosecution and defending a longtime federal statute.

The federal government is allied with multiple Democratic-leaning states as well as gun control groups that have emerged during the era of mass shootings, such as Everytown for Gun Safety, the Brady Center to Prevent Gun Violence and the Giffords Law Center.

On the other side, Hemani is defended directly in the case by both the American Civil Liberties Union as well as one of the lawyers who helped win the Bruen case.

Among the groups allied with Hemani are the NRA and other gun rights groups, several other conservative-leaning organizations, and the National Organization for the Reform of Marijuana Laws, or NORML.

“You have a very unusual lineup of amici in this case,” says Zack Smith, the manager of the Supreme Court and appellate advocacy program at the Heritage Foundation.

Government focuses on early ‘habitual drunkards’ laws

Sauer focuses his defense of the Gun Control Act provision on a “highly robust body of much harsher founding-era restrictions on the rights of habitual drunkards.”

Such citizens posed a danger and legislatures addressed the problem by applying criminal vagrancy laws, civil-commitment laws and surety laws to habitual drunkards, Sauer says in the brief.

Unlawful drug users, including marijuana users, “pose a greater danger than users of alcohol,” he said.

Some of the government’s allies take a broader view, such as the Second Amendment scholars who argue rather than merely compare habitual drug users to drunkards, Congress has expansive authority to identify categories of dangerous persons and deny them firearms.

“The interest here is the broader question of deference to legislative determinations of dangerousness,” says Gregg Costa, a partner with Gibson, Dunn, & Crutcher in Houston who helped write the scholars’ brief.

“The idea that [offenders] have to be under the influence of drugs at the moment they possess their guns would largely render this law inapplicable, because that is a very difficult thing to prove,” says Costa, a former 5th Circuit judge.

Hemani’s lawyers and allies question the government’s reliance on “habitual drunkard” laws as a proper historical analogue to sustain the Gun Control Act provision.

“Not only is that too high a level of generality, it’s not a distinctly similar historical analogue,” says Brandon Buskey, the director of the ACLU’s Criminal Law Reform Project and one of Hemani’s lawyers in the Supreme Court. “I think most Americans, half of whom have used marijuana and 62 million or so report using it currently, would be surprised that the government sees their regular and often responsible use of it … as akin to being a habitual drunkard, essentially someone who cannot resist the compulsion to have alcohol.”

Joseph A. Bondy, a New York City lawyer who is chair of NORML’s board of directors, says the federal government is seeking a status-based restriction disarming marijuana users, which is not supported by any historical analogue.

Will the government disarm “all the hunters in American who smoke a little weed?” he says, adding that under the government’s interpretation, “there are so many people who have a firearm and have consumed cannabis who are rendered de facto criminals.”

Smith of the Heritage Foundation says the Hemani case is important as the Supreme Court is still in the early stages of defining the scope of the rejuvenated right to bear arms and refining the standard set in Bruen.

The case “will be yet another marker along the road as the justices, and lower federal courts in particular, try to decide how to apply that history and tradition test that Bruen and Rahimi and other cases have said they must use,” he said.

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