Guns and Drug Users

This morning the U.S. Supreme Court took up yet another Second Amendment case, United States v. Hemani, No. 24-1234.

The wide-ranging federal gun control statute (18 U.S.C. § 922) prohibits gun possession by, among many others, “(g) … any person … (3) 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)).”

Does that law sweep too broadly? The federal courts of appeals are divided.

The Fifth Circuit held last year that there is “no historical justification for disarming a sober citizen not presently under an impairing influence” even though that person regularly uses illegal drugs. It applied that precedent in the present case.  Conflicting decisions are described in the Government’s certiorari petition (i.e., its request that the Supreme Court take up the case):

The decision below also warrants further review because it forms part of a three-way circuit conflict. One court, the Seventh Circuit, has held that Section 922(g)(3) complies with the Second Amendment, at least as a general matter. In United States v. Yancey, 621 F.3d 681 (2010), the Seventh Circuit concluded that the Amendment allows Congress to disarm “categories” of “presumptively risky people” and that “habitual drug abusers” form one such category. Id. at 683; see id. at 682-687. Although Yancey predated Bruen, it relied on the history-and-tradition test that Bruen approved, not on the levels-of-scrutiny approach that Bruen rejected. See id. at 683-686 (drawing analogies to historical laws imposing categorical restrictions). District courts in the Seventh Circuit have accordingly continued to follow Yancey even after Bruen.

A second court, the Eighth Circuit, has declared that Section 922(g)(3) violates the Second Amendment in a wide range of applications. It has concluded that “[n]othing in our tradition allows disarmament simply because [a defendant] belongs to a category of people, drug users, that Congress has categorically deemed dangerous.” United States v. Cooper, 127 F.4th 1092, 1096 (8th Cir. 2025). In its view, the Second Amendment instead requires some form of “individualized assessment.” Ibid. Under the Eighth Circuit’s approach, the government may apply Section 922(g)(3) only if it can make a case-by-case showing that drug use caused the defendant to “pose a credible threat to the physical safety of others,” to act like someone who is “mentally ill,” or to “induce terror.” Ibid. (citation omitted). Applying that approach, the Eighth Circuit has vacated two Section 922(g)(3) convictions, remanding the cases for the district courts to decide in the first instance whether disarming the defendants “line[s] up with the case-by-case historical tradition.” Id. at 1097; see United States v. Baxter, 127 F.4th 1087, 1090-1092 (8th Cir. 2025).

The Fifth Circuit has adopted an even stricter test. On its approach, the government generally may apply Section 922(g)(3) only to those who were “intoxicated at the time” they possessed firearms. Connelly, 117 F.4th at 272. The court also has left open the possibility that the government could “[p]erhaps” apply the statute in a case where the drugs were “so powerful” that they left someone “permanently impaired in a way comparable to severe mental illness.” Id. at 277.

Why the present Supreme Court considers Second Amendment cases to be worthy of such a large portion of its docket when anti-original interpretations of other provisions of the Constitution cause miscarriages of justice on a much broader scale in criminal cases nationwide every day remains a mystery.