United States of America
Petitioner,
v.
Ali Danial Hemani,
Respondent.
Introduction and summary of argument
18 U.S.C. § 922(g)(3) criminalizes the exercise of Second Amendment rights by any American who “is an unlawful user of or addicted to any controlled substance.” This ban violates the Constitution because it is a historical, vague, and far too broad: The Government’s attempts to analogize § 922(g)(3) to the historical treatment of alcoholics and early surety laws are flawed. The meaning of the statute’s operative term “unlawful user” is unclear. And vitiating the rights of half of the adult population is incompatible with preserving the Bill of Rights.
The “why” behind § 922(g)(3) differs from the historical disarmament of habitual alcoholics.
The Government argues that § 922(g)(3) is sufficiently analogous to the historical disarmament of habitual alcoholics. Cert. Pet. at 10–14. This comparison is unavailing in terms of both “why” and “how.” First, as to the underlying rationale for the restrictions: routine abusers of alcohol are dangerous to a greater degree, and in different ways, than are cannabis users.
Cf. Rahimi, 602 U.S. at 698–99 (noting that disarmaments pursuant to restraining orders target people who have been judicially determined to endanger others). Alcohol and marijuana affect users differently. Of immediate relevance to firearms safety, consuming alcohol tends to increase aggression, whereas cannabis use may decrease it. “While cannabis users appear to be susceptible to psychosis-related disorder, cognitive impairment, and traffic accidents, the risks involved seem to be lower than the corresponding risks from alcohol and tobacco use.” And marijuana use tends to reduce impaired drivers’ speed, tendency to closely follow other vehicles, and likelihood to engage in other risky driving behaviors—effects opposite to those observed in drivers under the influence of alcohol. The historical disarmament of habitual alcoholics reflected dangers that are absent from the marijuana context.
Cannabis use has not traditionally been thought to authorize disarmament in the way habitual alcoholism did. Cannabis was not commonly consumed in the Founding Era, but after becoming more widely introduced in the 19th century, it “was widely utilized as a patent medicine.” Prohibitions on cannabis consumption did not proliferate until the early twentieth century. Even when it was illegal to drink alcohol in Pennsylvania, Illinois, and North Dakota, marijuana use remained permissible. The first example of laws disarming people due to drug use date to the 1920s, and § 922(g)(3) originated only in 1968. Cert. Pet. at 15 & n.7; Br. of Pet’r at 5, 29.
The eventual criminalization of marijuana had the hallmarks of a moral panic rather than a rational public safety judgment: “a grassroots movement in the Southwestern United States . . . successfully labeled marijuana in the public mind as ‘Mexican Opium,’ a drug that turned Mexican field hands violent and high school students insane.” Legislatures long understood cannabis to differ from alcohol, slowly changing their assessments based on cultural hostility to marijuana rather than a scientifically valid appreciation of its effects. The modern disarmament of marijuana users did not arise from the same impetus as historical limits imposed on alcohol abusers.
The “how” behind § 922(g)(3) differs from the historical disarmament of habitual alcoholics and other dangerous people.
Besides lacking the same animating rationale, § 922(g)(3) differs from the historical disarmament of habitual alcoholics and other dangerous people in how it works. “From before the enactment of the Second Amendment through the early nineteenth century, legislatures did not limit the individual right to keep or bear arms merely because one sometimes used an intoxicant.” See United States v. Cooper, 127 F.4th 1092, 1097 (8th Cir. 2025) (“[I]ntoxication has been prevalent throughout our nation’s history, but earlier generations addressed that societal problem by restricting when and how firearms could be used, not by taking them away.”) (internal quotation marks, brackets, and citation omitted), cert. den’d Oct. 20, 2025. Only a handful of colonies even had relevant statutes. Virginia passed a law in 1655 preventing the firing of guns—but not their possession—while intoxicated. The punishment was only a fine, not disarmament. Besides, the rationale was to preserve gunpowder and avoid wrongly signaling that Indians were attacking. Similarly, New Jersey and New York passed laws between 1761 and 1775 that restricted firing weapons while intoxicated—but only at New Year’s and May Day celebrations.
Section 922(g)(3) is a much broader restriction. Someone who has tested positive for marijuana even just once “within the past year” can be a “habitual” user as defined by the statute’s implementing regulations. 27 C.F.R. § 478.11. Neither at the time of the Founding nor today would such minimal alcohol use justify forcible disarmament. Connelly, 117 F.4th at 282 (“[U]nder the government’s reasoning, Congress could (if it wanted to) ban gun possession by anyone who has multiple alcoholic drinks a week from possessing guns based on the intoxicated carry laws. The analogical reasoning Bruen and Rahimi . . . prescribed cannot stretch that far.”); United States v. Harris, 144 F.4th 154, 177 n.3 (3d Cir. 2025) (Ambro, J., concurring in part and dissenting in part) (“In the majority’s view, if you drink, then you can be disarmed. That was certainly not the historical tradition at the Founding.”).
The Government further contends that because habitual drunkards could be “confined in jails, work-houses, or asylums” under some historical laws, any lesser restriction on their Second Amendment rights is constitutional. Br. of Pet’r at 25. Only a minority of jurisdictions “locked up anyone found drunk in public.” Harris, 144 F.4th at 159 (majority op.) (identifying just two early-nineteenth-century American laws authorizing this); see also Bruen, 597 U.S. at 67 (holding that “the bare existence” of a few historical “localized re-strictions” does not determine the Second Amendment’s scope). This limited precedent fails to demonstrate “that the particular (and distinct) punishment at issue here . . . is rooted in our Nation’s history and tradition.” Range v. Att’y Gen. of U.S., 124 F.4th 218, 231 (3d Cir. 2024) (en banc) (rejecting a purported analogy between the capital nature of felonies in early
American law and lifetime felon disarmament); see also Bruen, 597 U.S. at 26 (explaining that “if earlier generations addressed the societal problem” targeted by a modern restriction “but did so through materially different means,” that could be evidence of a Second Amendment violation). Besides, in other jurisdictions, not all habitual alcoholics were detained, but rather those “who were dangerous.” Cooper, 127 F.4th at 1095; see Harris, 144 F.4th at 159 (discussing jurisdictions that had this practice or simply imposed good-behavior security requirements); id. at 172–73 (Am-bro, J., concurring in part and dissenting in part). It is one thing to compare the confinement of dangerous abusers of alcohol to the disarmament of “someone whose regular use of PCP induces violence.” Cooper, 127 F.4th at 1095 (internal quotation marks, brackets, punctuation, and citation omitted). But the analogy does not hold for a “frail and elderly grandmother who uses marijuana for a chronic medical condition.” Id. (internal quotation marks and citation omitted). For her—and the great majority of other marijuana users—“threatening violence or causing terror is exceedingly unlikely, so the justification for disarmament is not comparable.” Id. at 1096 (internal quotation marks and citation omitted).
Lastly, the Government points to surety laws as a historical analog for § 922(g)(3). Cert. Pet. at 12–13. Rahimi held that Founding Era surety laws can justify modern firearm restrictions based on restraining orders—but only so long as these orders are backed by a judicial finding “that an individual poses a credible threat to the physical safety of an intimate partner.” Rahimi, 602 U.S. at 690; see also id. at 696–97. Section 922(g)(3) lacks any similar due process. The Government argues that § 922(g)(3) in fact affords the accused “a full-dress criminal trial.” Br. of Pet’r at 26. But that trial concerns only past conduct, whereas the restraining-order laws upheld in Rahimi and the historical surety laws both restricted firearm rights ex ante. See Cooper, 127 F.4th at 1096–97.
In sum, § 922(g)(3) fails both prongs of the Bruen test. It is not justified by the same rationales as historical alcoholic-disarmament laws, nor does it work in the same way as did laws authorizing the disarmament of dangerous people.
Full Brief: U.S. v. Hemani