RIDGE RUNNER CHRONICLES: Smoking Weed and Your Second Amendment Right to Own a Firearm
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Recent studies show that over 30% of Americans now routinely smoke marijuana and many of these same people own firearms. If you fall into these two categories that overlap, you may be interested in knowing that it may be a felony for you to own those firearms. In about two months, the US Supreme Court will be addressing that issue in the case of US v Hemani. Here is a brief summary of the situation.
All Danial Hemani, a young man having dual citizenship in the US and Pakistan, was indicted in February 2023 under the so-called “Gun Control Act of 1968.” That act, among other things, prohibits possession a firearm by “an unlawful user of a controlled substance.” In Hemani’s situation, federal authorities raided his home in Houston and found both a stash of marijuana and a firearm in his bedroom. (He was living with his parents at the time.) Federal authorities concede that Hemani was not intoxicated or under the influence of drugs at the time of his arrest. During the raid, Hemani admitted to the police that he routinely smoked marijuana “every other day” without providing further details as to the extent of that use. Hemani was arrested and charged with a violation of the Gun Control Act of 1968 because he was a gun owner and “an unlawful user of a controlled substance.” The local federal district court dismissed the indictment, saying that this Act, as applied to this factual situation, violated Hemani’s Second Amendment rights to own a firearm. That dismissal was affirmed by the Court of Appeals for the Fifth Circuit. The current administration decided to challenge this decision and appealed it to the US Supreme Court. The Supreme Court has agreed to hear the case and oral argument is scheduled in March.
The issue boils down to whether a gun owner who is also a casual user of marijuana (meaning, in this case, someone who uses marijuana several times a week) can be prosecuted under the Gun Control Act as a felon. The language of the Second Amendment is brief and gives no clue as to how the framers of the US Constitution would react to this factual situation; obviously, marijuana use was essentially non-existent when the Second Amendment was drafted. Historically, “habitual drunkards” back when the Second Amendment was drafted were barred from possessing a firearm, but a “habitual drunkard” referred to serious alcoholics—people much different in temperament and self-control from the casual marijuana user of 2026. And the Gun Control Act of 1968 does not adequately define what is meant by “an unlawful user of a controlled substance.” Technically, federal law still prohibits the use and possession of marijuana, regardless whether that use and possession is legal under local law.
It is a bit surprising that the current administration decided to pursue this issue with this particular factual situation. Normally, you would expect this administration to be supportive of Second Amendment freedoms but apparently not in this case; maybe the authorities have some other reason to prosecute Hemani. And that leads to the observation, expressed by various commentators on this case, that being able to prosecute any firearm owner who is alleged to be “an unlawful user of a controlled substance” (whatever that means) widens the possibility of prosecuting one’s political enemies for contrived reasons. If you think that suggestion is absurd, just remember that Hunter Biden was convicted under the Gun Control Act of 1968 (although that drug use was much, much worse than casual marijuana use and most believe that prosecution was justified despite the political overtones).
You can expect a decision in this case in June. The Supreme Court is deciding several Second Amendment cases this term, and frankly, I suspect this will be the one decision in the Second Amendment cases currently being decided by the Supreme Court that will not produce a result that the current administration wants; there are just too many “normal” Americans who could be impacted if this case becomes precedent to prosecute gun owners for casual marijuana use. Stay tuned.
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■ Bill Hoagland has practiced law in Alton for more than 50 years, but he has spent more than 70 years hunting, fishing and generally being in the great outdoors. His wife, Annie, shares his love of the outdoor life. Much of their spare time is spent on their farm in Calhoun County. Bill can be reached at [email protected].
