Supreme Court ponders law making it a crime for gun owners to use marijuana

The Supreme Court hears arguments Monday in an important gun case that has united an array of strange bedfellows, from conservative gun rights groups to liberal civil liberties groups. At issue is a federal law making it a crime for drug users to possess a firearm. It’s the same law that was used to prosecute then-President Joe Biden’s son for illegal gun possession — only this case involves marijuana use and gun ownership.

The briefs in the case present diametrically different versions of the facts. On one side, the Trump administration portrays Ali Danial Hemani as a drug dealer and someone with terrorist ties and a marijuana habit. Importantly, he is not being prosecuted for any of those offenses, however. Rather, the government has charged Hemani with violating a federal gun law that bars drug addicts from possession of firearms, a crime punishable by up to 15 years in prison.

The 5th U.S. Circuit Court of Appeals threw out the indictment, declaring that the federal law violates Hemani’s Second Amendment right to own a gun.

The Justice Department appealed to the Supreme Court, arguing that because Hemani admitted to FBI agents that he used marijuana several times a week, he is a “persistent” drug user, thus rendering illegal the possession of the gun he bought legally and keeps securely in his home.

Hemani’s lawyer, law professor Naz Ahmad of the City University of New York, paints a very different picture of her client. Hemani, she notes, was born and raised in Texas, “attended high school there, played on the high school football team, attended the University of Texas at Arlington, was an honor student there” and is “a really valued member of his local religious community.”

“The Second Amendment doesn’t support disarming and prosecuting somebody for mere possession of a firearm if they happen to have used marijuana occasionally,” she says.

“That’s a mismatch,” she adds, especially at a time when 40 states, to one degree or another, have legalized marijuana use.
 
If the court rules against Hemani, she says, “the statute could apply to anybody. It could apply to somebody who uses like a marijuana sleep gummy.”

The Trump administration’s advocate, Solicitor General D. John Sauer, acknowledges that under the Supreme Court’s landmark gun decision four years ago, the government has a heavy burden to show that modern-day gun laws are analogous to laws in place at the nation’s founding. But he contends that the statute used to prosecute Hemani is both justified and analogous to founding-era laws and practices.

Specifically, in his Supreme Court brief, Sauer points to the harsh punishments imposed during the founding era on “habitual drunkards.” And he contends that both Congress and the states have restricted firearm possession by illegal drug users “for as long as that social evil has plagued America.”

That said, for the most part, the case seems to have united groups from left to right, from civil liberties groups to gun rights advocates.

“It’s outrageous that they tried to get him on a marijuana gun charge,” says Aidan Johnston, director of federal affairs for Gun Owners of America. He contends that the government is seeking to criminalize conduct that was widely tolerated at the founding.

“It was the universal custom of founding-era militias to imbibe,” he notes, adding that Thomas Jefferson and other famous Americans “possessed firearms while being users of drugs ranging from opium to cocaine.”

At the opposite end of the ideological spectrum are a variety of gun-safety groups that fear that if Hemani wins his case, it could gouge a hole in the existing system of national background checks.

Under the current system, dealers are required to first clear the sale by submitting the buyer’s name to the FBI’s National Instant Criminal Background Check System. The hitch is that there is a very small window in which to complete the check — just three days. And gun-safety groups say that anything that makes the rules more complicated and unclear could really screw up the system.

“We’re saying” to the court, “whatever you do, it’s essential that you keep the rules clear so that in that short window, federal agencies can give a quick answer to the dealers,” says Douglas Letter of the Brady Center to Prevent Gun Violence. 

An adverse ruling, he says, would mess up the criminal background check process. That, in turn, would result in “so many, particularly women and children, who will die if that kind of a system is not in place.”

A decision in the case is expected by summer.