Two of the Supreme Court's conservative justices pushed back Monday against the federal government's argument that marijuana users can be stripped of their Second Amendment rights, raising pointed questions about the legal coherence of prosecuting gun owners for cannabis use in an era when most states have legalized the drug in some form.
The case, United States v. Hemani, centers on Ali Danial Hemani, a Texas man who argued he shouldn't have been charged with a crime because he owned a gun and smoked marijuana a few times a week. The Trump administration had asked the court to revive the criminal case against Hemani under a federal law that bans all illegal drug users from owning guns.
During oral arguments, Justices Amy Coney Barrett and Neil Gorsuch voiced skepticism of the government's position, and a majority of justices appeared to lean toward a narrow ruling. The court is expected to decide the case by the end of June.
According to Newsweek, Barrett cut straight to the evidentiary problem at the heart of the government's case:
"What is the government's evidence that using marijuana a couple of times a week makes someone dangerous?"
It's a question that deserves a serious answer, and the government apparently struggled to provide one. Principal Deputy Solicitor General Sarah Harris argued that the law is a reasonable measure to keep firearms out of the hands of potentially dangerous people. But "potentially dangerous" is doing an extraordinary amount of work in that sentence. The federal government is, in effect, asking the court to accept the premise that casual marijuana use, something tens of millions of Americans engage in, constitutes a sufficient predicate to nullify a constitutional right.
Gorsuch zeroed in on the absurdity of the federal government's own conflicted posture:
"What do we do with the fact that marijuana is sort of illegal and sort of isn't and that the federal government itself is conflicted on this?"
He's right. A growing number of states have legalized cannabis while it remains illegal at the federal level. The result is a legal patchwork where a person can walk into a licensed dispensary in one state, make a perfectly legal purchase under state law, and become a federal felon the moment they touch a firearm. That's not the rule of law. That's a trap.
Chief Justice John Roberts appeared to approach the case from a different angle, expressing concern about the judiciary overstepping into territory that belongs to the political branches:
"It just seems to me that this takes a fairly cavalier approach to the necessary consideration of expertise and the judgments we leave to Congress and the executive branch."
Roberts has a point about institutional roles, but that framing also highlights the real failure here: Congress wrote a sweeping prohibition that treats every illegal drug user identically, whether they're a cartel trafficker or a guy who takes a gummy before bed. Erin Murphy, an attorney for Hemani, made a version of this argument, noting that many cannabis users regularly take gummies as sleep aids and are perfectly capable of making safe decisions about firearms.
The law, as applied to casual marijuana users, does not distinguish between genuine threats to public safety and ordinary Americans exercising two choices that, in most of the country, are individually legal. It criminalizes a status, not conduct. And it does so at the expense of a right the Constitution explicitly protects.
The case has drawn an unusual coalition of supporters for Hemani. Both the ACLU and the NRA back his position. Everytown, the gun control organization, opposes it. Cecillia Wang, national legal director at the ACLU, framed the stakes bluntly:
"Anyone one of them who also owns a gun for self defense could be charged with a felony. This law violates the Second Amendment and puts far too much power in the hands of federal prosecutors, with the risk of arbitrary or discriminatory enforcement."
When the ACLU and the NRA agree that a federal law gives prosecutors too much power to strip Americans of constitutional rights, that should tell you something about the law.
The concern about prosecutorial discretion is not abstract. Millions of Americans use marijuana, often legally under state law. Any one of them who also owns a firearm is technically a federal criminal. That kind of mass criminalization doesn't enhance public safety. It creates a reservoir of selective enforcement, the kind of power that can be aimed at anyone, anytime, for any reason.
The court's ruling could determine whether the government can prosecute marijuana users for possessing a firearm. Given the tenor of Monday's arguments, a narrow ruling seems likely, though the scope remains uncertain. Some justices appeared concerned about going too far in either direction.
The deeper issue won't be resolved by this case alone. Congress built a prohibition regime around marijuana that no longer reflects the legal or social reality of the country. The federal government itself can't decide whether cannabis is a menace or a misdemeanor. Until the political branches reconcile that contradiction, courts will keep getting cases like this one.
Americans who have committed no act of violence, threatened no one, and broken no state law will keep facing the prospect of felony charges for exercising a constitutional right.
