ACLU Backs Gun Rights at SCOTUS

The ACLU filed a brief defending an individual's Second Amendment rights at the Supreme Court — the first time in the organization's history it has done so.

State of play: The case is United States v. Hemani, argued Monday. Ali Hemani, a Texas man, was charged under 18 USC 922(g)(3) after federal agents found a Glock 19 and about two ounces of marijuana in his home. The 5th Circuit threw the charge out. The Trump administration wants it reinstated.

Catch up quick:

• 18 USC 922(g)(3), on the books since 1968, makes it a federal felony — up to 15 years — for an "unlawful user" of any controlled substance to possess a firearm
• The statute doesn't define "unlawful user," and federal courts have been arguing over what it means for decades
• The 5th Circuit ruled in 2024 that the Second Amendment bars prosecution when the government can't show the defendant poses a danger beyond the bare elements of the statute

The coalition backing Hemani is wide. NRA, Gun Owners of America, Second Amendment Foundation, Firearms Policy Coalition, NORML, the Drug Policy Alliance — and now the ACLU. Brandon Buskey, director of the ACLU's Criminal Law Reform Project, put it plainly:

"The government is trying to imprison someone for up to 15 years based on a statute that only requires that someone be an 'unlawful user' of a drug like marijuana and be in possession of a weapon, even if that weapon is safely secured."

The intrigue: The Trump administration — which has loudly claimed the mantle of Second Amendment protection — is the one asking the Court to uphold this prosecution. It argues 922(g)(3) applies only to "habitual" drug users, a reading that isn't in the statute's text and sits awkwardly next to a separate provision covering people "addicted" to controlled substances.

The legal question: Two distinct arguments are in play. First, the statute is unconstitutionally vague — "unlawful user" gives no fair notice of what conduct is actually prohibited, a Fifth Amendment due process problem. Second, the Second Amendment itself bars prosecuting someone whose only offense is owning a firearm while occasionally using marijuana.

By the numbers: Survey data on gun ownership and drug use suggests roughly 20 million Americans could fall under 922(g)(3) as currently written. On top of the 922(g)(3) charge, gun-owning cannabis consumers can face three additional related federal felonies.

The ATF recently floated a revised definition of "unlawful user" that would exclude isolated or sporadic use and people who've stopped regular use — an implicit acknowledgment that the current standard is indefensible. That proposed rule hasn't been finalized.

What to watch: How the Court draws the line here matters enormously. A narrow ruling on vagueness would fix the statute's definitional problems without touching the constitutional question. A broader ruling on Second Amendment grounds would make it much harder for the federal government to strip gun rights based on drug use alone — regardless of how clearly Congress rewrites the law.