18 U.S.C. § 922(g)(3) prohibits the possession of firearms by a person who “is an unlawful user of or addicted to any controlled substance.” Is that constitutional as to a regular marijuana user who is not impaired at the time he possesses a gun? Last week, the Supreme Court granted review in a case that presents that question. The answer has implications for state court, as explained below.
The case. The Court has agreed to hear United States v. Hemani, a case out of the Fifth Circuit. The alleged facts are interesting. The defendant, Ali Hemani, is a dual citizen of the United States and Pakistan. The Government contends that he and his family have various links to causes and organizations connected to Iran. For example, his mother was “captured on video telling an Iranian news agency that she prayed that her two sons, including respondent, would become martyrs.”
The defendant is also a suspected drug user and dealer. The FBI searched his home under a search warrant and found “a Glock 9mm pistol, 60 grams of marijuana, and 4.7 grams of cocaine.” The defendant allegedly told agents that he used marijuana “about every other day.”
He was charged with violating section 922(g)(3), but the case was dismissed by the district court in light of Fifth Circuit precedent such as United States v. Connelly, 117 F.4th 269 (5th Cir. 2024) (stating that “there is no historical justification for disarming a sober citizen not presently under an impairing influence”). The Fifth Circuit affirmed, the Government petitioned the Supreme Court for a writ of certiorari, and the Court granted review. The argument date has not yet been set, but will likely be early in 2026.
Reading the tea leaves. It is, of course, impossible to know for sure what will happen with Hemani. The Second Amendment is undergoing something of a Renaissance, and the Eighth Circuit has joined the Fifth in allowing as applied challenges to section 922(g)(3).
Still, if I had to bet, I would bet on reversal. First, empirical analysis shows that when the Court grants certiorari, it reverses the lower court more than 70 percent of the time. Second, the vehicle the Court selected suggests that reversal is likely. Issues around section 922(g)(3) have been percolating in the lower courts for years. Had the Court chosen to review a case in which, for example, an older person who used marijuana weekly to control the pain of a degenerative disease was charged with possessing a hunting rifle, that might set the stage for a successful as-applied challenge. But Hemani is alleged to have used marijuana not just occasionally, but frequently. He was caught not just with marijuana, but with cocaine. He’s suspected of being not just a drug user, but a drug dealer. And he is not an otherwise ordinary citizen, but one with alleged foreign connections to causes and organizations that brought him to the attention of the FBI. (Admittedly, that last point seems to lack any direct connection to the charged offense, so it will be interesting to see whether and how it factors into the Court’s consideration.)
The seemingly unsympathetic nature of the defendant reminds me of the facts in United States v. Rahimi, 602 U.S. 680 (2024), where the Court upheld 18 U.S.C. § 922(g)(8), which bars individuals subject to a DVPO from possessing firearms. The defendant in that case was manifestly dangerous, practically a poster child for disarmament, and the result was therefore inevitable.
Potential impact on state court. We don’t have a North Carolina statute that parallels section 922(g)(3). But that statute regularly arises in state court in connection with the return of firearms after they have been seized by law enforcement or surrendered as a result of a surrender order in a DVPO. A court or law enforcement agency considering a request for a return of firearms must consider whether the return would be lawful, and a frequent concern is whether return would violate section 922(g)(3). If Hemani ends up as a win for the defendant, there may be more flexibility for individuals who use unlawful substances to recover their weapons at the conclusion of a criminal case or a DVOP. If it ends up as a win for the Government, that door may remain closed.
Of course, the Court’s eventual opinion may raise as many questions as answers. For example, the Court might conclude that an as applied challenge is possible and lay out a new set of factors for lower courts to consider. Such an approach would likely lead to large numbers of individual challenges and considerable work for lower courts to develop consistent approaches to the question.
Further reading. We’ll cover the Court’s opinion on the blog when it comes out. In the meantime, you can read more about Hemani at SCOTUSblog or at Reason. A detailed preview of the parties’ likely arguments can be found in the cert petition and Hemani’s response.