Federal law has long prohibited illegal users of controlled substances from possessing firearms. 18 U.S.C. § 922(g)(3) (prohibiting from firearm possession any person “who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)”).
Who is an Unlawful User
Historically, an unlawful user included anyone who ‘regularly used’ controlled drugs or who had recently, typically within the last year, been caught with or could be determined to have used controlled drugs without a lawful prescription or in a manner different from such prescription. In implementing Congress’ prohibition, the Department of Justice defined “Unlawful user of or addicted to any controlled substance” in 27 CFR § 478.11.
The codified definition included persons whose use was not only “characterized by impaired control over use” but also persons “who regularly use[] a controlled substance over an extended period of time continuing into the present.” Id. The common theme in the definition is that unlawful users are defined by regular use of a controlled substance regardless of whether or not such use is addictive, controlling, or contemporary with the possession of firearms.
The Set Up
The federal firearm prohibition of 922(g)(3) came of issue in U.S. v. Hemani. (608 U.S. _____ (2026)). Hemani’s home was subject to a search by federal law enforcement agents. In that search Hemani cooperated and turned over his firearm and some marijuana. He also informed the police he used said marijuana every other day.
That statement of use, coupled with possession of a firearm, netted Hemani a single charge. An indictment under 18 U.S.C. § 922(g)(3) for being in illegal possession of a firearm while a ‘regular’ user of a controlled substance in an illegal manner.
Hemani challenged the indictment, was successful, and the government appealed. All the way to the Supreme Court. Thus the high court decided whether or not the regular, every-other-day use of marijuana was sufficient reason to remove Hemani’s firearm rights.
The Bruen Test
In New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U.S.1 (2022) the Supreme Court set forth the test for determining the constitutionality of laws which purport to regulate conduct protected by the Second Amendment.
First, the Court determines whether the Second Amendment’s terms cover the conduct in question. Id. at 24. If the conduct is covered, the Second Amendment ‘presumptively’ protects it. Id.
Second, to overcome that presumption, the government then bears the burden of showing the law is “consistent with the Nation’s historical tradition of firearm regulation.” Id.
The Application
The Court had to apply the Bruen test to judge the constitutionality of 18 USC § 922(g)(3). Without dissent, the Justices recognized that the conduct, possession of a firearm, is protected by the Second Amendment. This shifted the burden to the Government to produce a historical analogue to show “the challenged regulation is consistent with the principles that underpin our regulatory tradition.” United States v. Rahimi, 602 U.S. 680, 692 (2024).
The government likened the prohibition in 922(g)(3) to the nation’s historical habitual drunkard laws. The Court however divided these laws into three types: vagrancy laws, civil commitment statutes, and surety laws. After classifying and grouping the laws, the Court compared the how and the why of the law in question with the historical examples provided.
The “why” analysis can be said to examine the purpose of legislation. Why did Congress pass the legislation? What was the purpose. In the instant case, the legislation was passed ostensibly to protect the public from physical harm by persons who regularly use illegal drugs, in any amount. However, the habitual drunkard laws were more focused on making people work and protecting a person, or his family, from financial ruin from over imbibing. This importantly showed that habitual drunkard laws were not designed to protect the general public and did not disarm persons for this reason.
In analyzing the why, the Court also drew significant attention to the type of person who was subject to each law. As the Court noted, a regular user of a ‘gummi’ to go to sleep would be caught up by 922(g)(3), but a habitual drunkard was one who “for any considerable part of his time [was] intoxicated to such a degree as to deprive him of his ordinary reasoning facilities.” In re Tracy, 1 Paige Ch. 580, 582-583 (N.Y. Ch. 1829). Or, as the court bluntly noted a “man who [was] intoxicated or drunk one-half his time.” See Ludwick v. Commonwealth, 18 P.A. 172, 175 (1851). “Even the American Temperance Society called those who drank 12 ounces of hard liquor daily mere ‘occasional drunkards.’ As the Society saw things, it took 24 ounces to qualify as a ‘confirmed drunkard.’ Hemani (internal cites omitted). Upon considering the historical record, one who uses a relatively light amount of drugs, even regularly, would not meet the historical definition of a habitual drunkard. This alone should have been, and probably would have been, enough to show that history does not support the 922(g)(3) prohibition.
As a fun aside, the Court even took a moment to consider the ‘bar tab’ for a farewell party for General George Washington. While gathered at Philadelphia’s City Tavern, the General and his guests, 55 in number were “said to have ordered 54 bottles of madeira, 60 bottles of wine, 8 bottles of ‘Old stock,’ 22 bottles of porter, 8 bottles of cider, 12 bottles of beer, and 7 large bowls of punch.” Hemani. That’s over three bottles a person; plus the punch!
The Court next considered the “how.” 922(g)(3) is easy to understand. It attempts to answer the question of danger by disarming any user of an illegal drug without any prior process. The habitual drunkard laws however varied in an important fact. These laws required some ‘pre-deprivation process’ before affecting the accused person. This might be a proceeding before a justice of the peace, or a hearing in a probate court. See Hemani. Importantly, there was some form of process to affect the accused habitual drunkard before he lost rights. That is not the case with 922(g)(3) which disarms a man, without any accusation, hearing, or defense, for merely the use of a substance. The lack of due process was important to the Court. It is likely the Court would have decided the case on this matter alone as due process is a fundamental right of our system of governance.
Considering the failures in the historical analogues, the Court determined that habitual drunkard laws were nothing like 922(g)(3). The conduct regulated under the habitual drunkard laws was much more severe than that of Hemani. The habitual drunkard laws provided for some pre-deprivation due process, and the habitual drunkard laws were not designed to protect the general public from harm by dangerous persons. For these reasons the government was not able to overcome the presumption, and 922(g)(3), as applied to Hemani, was found unconstitutional.
The Remainder of § 922(g)
The Court was quick to point out “the conclusion today should not be taken to suggest “that the Second Amendment prohibits the enactment of laws banning possession of guns by categories of persons thought by a legislature to present a special danger of misuse.” Hemani fn. 6. The Court was clear that this opinion should not cast doubt on other sections of 922(g) which do contain pre-deprivation due process such as prohibitions for felons or people adjudicated as mentally defective.
However, in a concurring opinion, Justice Thomas clearly questioned the constitutionality of 922(g). “Section 922(g) appears to exceed Congress’s powers under the Commerce Clause.” Hemani, Thomas J. concurring. While encouraging, Justice Thomas has unfortunately been in the minority on enforcing limits on Congress’ commerce clause powers. However, it is likely future court cases may revisit this question.
Take Aways
Hemani was not a facial challenge to 922(g)(3) but an ‘as applied’ challenge. This means that 922(g)(3) is still a law, and that the Court may decide another case under the same law differently. For instance, if the Court was able to show the defendant was more than a regular user, but actively addicted to a drug, the analysis would change.
That noted, the case is clear that the government must show more than regular use of illegal drugs to remove a person’s firearm rights. It must show that use rises to the level the person cannot make unimpaired decisions. The government would also need to overcome the lack of pre-deprivation due process which would require some showing that the person had due process before becoming subject to 922(g)(3). This is a tall order as most forms of such due process, such as being involuntarily committed to rehab by the probate court or found guilty of some drug law, trigger another prohibition such as 922(g)(4) or (1) respectively.
In states that allow the legal use of marijuana, we can expect some hard decisions about when both a medical marijuana card and a concealed weapons permit is issued. Here in SC the practical applications will arise during background checks for persons who were recently arrested or convicted for a drug offense or who failed a drug test. Additionally, federal prosecutors are likely to be much more cautious about bringing cases under 922(g)(3), especially when there is no other criminal violation in question.
Help.
Robert can help with all sorts of gun matters, wills and probate matters, and business matters. While Robert digs deep into gun laws, he is largely unfamiliar with the labyrinth of federal and state drug laws. However, that is why he has a rolodex of cohorts who can help out in almost any type of case. For criminal cases or personal injury matters, such as auto accidents or work injuries, Robert has several attorneys he works closely with to meet the needs of clients. Robert also works with an Intellectual Property firm and has the resources to assist with patents, copyrights, trademarks and sophisticated business matters including sales and purchases and litigation related to the same. If you have a legal issue and wonder if we can help, reach out to Robert and find out.