The U.S. Supreme Court announced it will consider whether a statute used to convict Hunter Biden, which prevents Americans who illegally use drugs from owning guns, is constitutional.
The case is United States v. Hemani. The Court will decide whether the federal statute that prohibits the possession or ownership of firearms by a person who “is an unlawful user of or addicted to any controlled substance,” violates the Second Amendment.
If someone wants to purchase a firearm from a federal firearms licensee, they must fill out form 4473 from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and undergo a background check. One of the questions on this ATF form asks: “Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?”
Lying on this form, as Hunter Biden found out, is a felony.
In this particular case, the government charged Ali Danial Hemani with one count of violating the statue in February 2023. Hemani was investigated for a possible connection with the Iranian Revolutionary Guard and when FBI agents searched his home, they found a pistol and drugs.
The U.S. Court of Appeals for the Fifth Circuit found the federal law unconstitutional in most cases and ruled that it could only be applied to those who are “presently impaired.”
The Trump administration appealed, arguing that the law should be upheld because habitual drug users with firearms present “unique dangers to society.”
This issue has become more complicated because, while marijuana remains a Class I controlled substance at the federal level, it has also been legalized in nearly half the states. Marijuana has also become a much more potent drug over the last half century—while, in the 1970s, the average THC concentration in marijuana was around 2%, today it is often 15-25% in commercially sold marijuana products (some are much higher).
When asking the Supreme Court to hear this case, U.S. Solicitor General D. John Sauer said that “[t]he Second Amendment’s right to keep and bear arms is a fundamental right that is essential to ordered liberty,” and that “[u]njustifiable restrictions on that right present a grave threat to Americans’ most cherished freedoms.” But, Sauer claimed, the federal law at the center of the case is one of the “narrow circumstances in which the government may justifiably burden that right.”
Sauer maintained that the law “imposes a limited, inherently temporary restriction—one which the individual can remove at any time simply by ceasing his unlawful drug use.” Also, he wrote that the law “stands solidly within our Nation’s history and tradition of regulation” as there were Founding-era restrictions on the possession of guns by “habitual drunkards.”
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