In August 2022, Federal Bureau of Investigation agents raided the home of Ali Danial Hemani, a 25-year-old born and raised in Texas. Hemani and his parents are Pakistani-American Muslims who often travel to the Middle East for religious and family reasons, including visiting his brother in Iran. The federal government started surveilling the family, and accused them of supporting the Iranian government against the United States.
The FBI’s search of the family home turned up nothing to substantiate those allegations. What they did find, however, was Hemani’s gun. Hemani also admitted to the agents he had roughly two ounces of weed in the house, and consumes marijuana “about every other day.”
This is unremarkable: Millions of Americans own a gun, and millions of Americans use marijuana. But technically, the federal Gun Control Act of 1968 makes it illegal for any person “who is an unlawful user of or addicted to” certain controlled substances, including marijuana, to possess a gun. So in February 2023, federal prosecutors charged Hemani with a felony, and held him in pre-trial detention for seven months.
In February 2024, however, a federal trial judge dismissed the indictment, finding that the law Hemani was accused of breaking was unconstitutional in these circumstances, because disarming marijuana users was not “consistent with the nation’s history and tradition of firearm regulation.” Still hoping to prosecute Hemani, the Trump administration appealed. When the Fifth Circuit affirmed the dismissal, Trump appealed again. And on Monday, the Supreme Court heard oral argument in United States v. Hemani to decide if that drug user in possession law violates the Second Amendment.
The federal government has prosecuted thousands of drug users for gun possession in the decades since Congress passed the Gun Control Act, without running into this fairly predictable constitutional hurdle. But now, the government has to contend with the conservative wing of the Supreme Court’s and their dedication to originalism, used to (conveniently) strike down laws it deems insufficiently historical. In its 2022 decision New York State Rifle & Pistol Association v. Bruen, the Court declared that laws regulating “the right of the people to keep and bear arms” violate the Second Amendment unless there is a “well-established and representative historical analogue.”
On Monday, Principal Deputy Solicitor General Sarah Harris tried to pass the Court’s historical test by arguing that a few 18th-century state laws restricting drunkards from using guns empower the federal government to prevent marijuana users like Hemani from owning a gun. In order to figure out whether a prohibition on drug users possessing guns passed in 1968 is still legal in 2026, the Court spent oral argument pondering how drunk the Founding Fathers got in 1776.
“John Adams took a tankard of hard cider with his breakfast every day,” said Justice Neil Gorsuch. “James Madison reportedly drank a pint of whiskey every day,” he continued, and Thomas Jefferson “had three or four glasses of wine a night.” There was a point to the historical booze consumption trivia: Gorsuch’s questions aimed to discern if there was a legal difference between using a substance occasionally and habitually, and to identify where the line between the two fell, should one exist. Because of Bruen, he reasoned, the reference point for drawing such a line had to be some point in the founding era.
Harris pushed back on the idea that historical drunkard laws distinguished between someone who was addicted to alcohol versus someone who was “just drunk all the time,” and said today’s laws don’t need to either. “If you’re frequently using heroin regardless of whether you’re addicted to it, it is a fair judgment to make that you are exceptionally dangerous,” she said. Justice Ketanji Brown Jackson quickly responded that “it might be a fair judgment, but, conceptually, that is precisely what the Bruen test prohibits.”
Jackson pointed out that the Court’s commitment to originalism made common-sense inquiries off-limits. Under Bruen, she explained, “the only thing the modern legislature gets to do is follow the judgments of the founding-era legislature around who was dangerous and who gets to be disarmed.” The views of later lawmakers are “irrelevant,” she said.
Undeterred by Jackson’s reminder, Chief Justice John Roberts later voiced concern about limiting modern Congress’s ability to assess the “dangerousness” of drug users. In an exchange with Hemani’s counsel, Erin Murphy, he contended that assessing the historical similarities of drug usage on a “case-by-case basis” would be a “fairly cavalier approach” that shortchanges “the judgments we leave to Congress and the executive branch.” Jackson chimed in that Roberts’s worry was “reasonable,” but it too was “what Bruen tells us we’re not supposed to do.”
The “benefit” of the pre-Bruen test, said Jackson, was that judges were allowed to consider if Congress had a legitimate goal and if disarming someone was “sufficiently tailored to that aim.” But the Court tossed that test out in favor of “arbitrary identifications of analogues.” Jackson both criticized Bruen for “producing inconsistent results,” and pushed the Court to lie in the jurisprudential bed it made.
This proved frustrating for Justice Sam Alito, whose commitment to originalism waned when confronted with the prospect of not prosecuting a brown man. “The most commonly used illegal drugs either had not been invented at the time of the adoption of the Second Amendment or the adoption of the Fourteenth Amendment,” he complained. “Heroin was invented in 1874. Cocaine, 1855. Methamphetamine, 1893. Fentanyl, 1959,” said Alito. “We don’t know what the founders—what those who adopted the Second Amendment or the Fourteenth Amendment—thought about illegal drug use per se,” he said, showing rare recognition of the practical limits of his preferred interpretive method.
Hemani is yet another indication that the Supreme Court’s turn to originalism in Bruen created a slew of questions for legislators trying to enact gun laws and judges trying to apply them. It’s not clear how similar historical conduct and laws must be to the conduct being regulated now. It’s not clear what historical time period is the appropriate comparator. It’s not clear if modern lawmakers have any room to make their own policy judgments. Hemani is the second gun rights case the Court has heard so far this term, and the justices don’t appear to be getting any closer to answers.
