ACLU Joins Second Amendment Fight

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

State of play: The case is United States v. Hemani. Ali Hemani, a Texas man who smoked marijuana a few times a week, owned a Glock 19. Federal prosecutors charged him under 18 USC 922(g)(3), which makes it a felony for any "unlawful user" of a controlled substance to possess a firearm. The FBI originally suspected him of financing Iranian terrorism. They never found evidence of that. They found a pistol and two ounces of weed.

Catch up quick:

• A federal judge dismissed the gun charge in February 2024
• The 5th Circuit upheld that dismissal in January 2025, applying the Bruen historical tradition test
• The 5th Circuit found that 922(g)(3) — which disarms drug users even when sober and at home — has no valid historical analogue
• The Trump administration then asked SCOTUS to reverse that ruling and reinstate the charge

The intrigue: The ACLU's own position statement, posted on its website as recently as December 2023, said the organization "disagrees with the Supreme Court's conclusion" in Heller and considers the Second Amendment a collective right, not an individual one. That statement is now in direct tension with the brief its lawyers signed.

"This is the first time that we have entered a case affirmatively on behalf of an individual making a Second Amendment claim. Now that the Supreme Court has recognized this as a fundamental right, we see this as an important civil liberties issue." — Brandon Buskey, ACLU Criminal Law Reform Project

The legal question: The 5th Circuit drew a sharp line in its earlier Connelly ruling — historical laws against carrying while presently intoxicated in public are not the same thing as a categorical lifetime ban on gun ownership for anyone who uses drugs. Section 922(g)(3) is the equivalent of telling anyone who drinks alcohol they can never own a firearm. The court found that comparison doesn't survive Bruen scrutiny.

What gun owners should know: 922(g)(3) is a federal statute that applies everywhere. If SCOTUS sides with the Trump administration and reverses the 5th Circuit, the government retains broad authority to permanently disarm anyone it can classify as an "unlawful user" of any controlled substance — including cannabis, which remains federally illegal regardless of state law. That's a charge that could follow a marijuana conviction, a positive drug test, or a prosecutor's inference from circumstantial evidence.

Yes, but: The ACLU didn't take this case because it suddenly loves guns. The organization has supported stricter gun control for decades and continues to do so. Its lawyers are here because the case also touches drug war overreach and prosecutorial abuse — traditional ACLU territory. The Second Amendment argument is a tool they're ethically required to use now that they're in the case. That's a narrower commitment than it might appear.

What to watch: Oral arguments at SCOTUS haven't been scheduled as of this writing. The NRA filed separately on the same side. How the Court rules will determine whether the Bruen framework has real teeth when applied to federal disarmament statutes — or whether "historical tradition" analysis has limits the 5th Circuit missed.