Second Amendment Update: Supreme Court Strikes Down Federal Gun Ban for Marijuana Users

By  Robert Phillips
Deputy District Attorney (Ret)

Second Amendment Update; 18 U. S. C. § 922(g)(3) and the Possession of a Firearm by an Unlawful User of Marijuana:

18 U. S. C. § 922(g)(3) makes it a 15-year felony for anyone who is an “unlawful user of,” or who is “addicted to” a “controlled substance.” Under the terms of this statute, anyone who fits into either of these two categories is automatically banned for life from possessing a firearm. Marijuana, as a Schedule I controlled substance (but see below), qualifies as such a controlled substance. In the recent United States Supreme Court case of United States v. Hemani (Jun 18, 2026) __ U.S. __ [146 S.Ct. 1677; 225 L.Ed.2nd 314], where the government prosecuted Ali Hemani under §922(g)(3)’s “unlawful user” provision, the High Court held that § 922(g)(3) is inconsistent with the Second Amendment’s firearms possession protections. As such, it is unconstitutional and unenforceable. In upholding a federal Fifth Circuit Court of Appeals’ decision that held that Hemani has a Second Amendment constitutional right to possess a firearm despite his admitted marijuana use, the Court held that § 922(g)(3) infringes upon the Second Amendment as provided in the U.S. Supreme Court’s landmark case decision of New York State Rifle & Pistol Association, Inc. v. Bruen (2022) 597 U. S. 1.

Consistent with a number of cases we’ve discussed before, the Court began by asking whether the Second Amendment, by its terms (i.e., “the right to bear arms”), covers the conduct in question in this new case; i.e., that he is a “current user” of marijuana, and as such, cannot possess of firearm. Concluding this issue in Hemani’s favor, the Court noted that the Constitution “presumptively” protects his possession of a firearm.  To overcome this presumption, the ....

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