Conservatives, progressives unite to defend weed smoker's Second Amendment rights

Under federal law, millions of Americans are committing felonies right now because they own guns and use marijuana, even if they live in states that have legalized the drug. There is nothing unconstitutional about that baffling situation, a Trump administration lawyer assured the Supreme Court on Monday, because cannabis consumers are analogous to "habitual drunkards," who historically could be confined to workhouses or mental institutions.

Most of the justices, including both Republican and Democratic appointees, seemed skeptical of that claim. Their agreement reflected the trans-partisan alliances inspired by this case, which illustrates the potential for common ground between right-leaning critics of gun control and left-leaning critics of the war on drugs.

The case, which sits at the intersection of those two policies, involves Ali Hemani, a Texas man who was charged with illegal gun possession in 2023 after an FBI search of his home discovered a Glock 19 pistol, about 2 ounces of marijuana, and less than a gram of cocaine. Hemani admitted that the gun was his, and that he smoked marijuana a few times a week, which would have been enough to convict him.

The case never went to trial. The charge was dismissed based on a 2024 decision by the U.S. Court of Appeals for the 5th Circuit, which held that the Second Amendment bars such prosecutions when they are based on nothing beyond the elements specified by the statute.

Those elements do not require any showing that the defendant's pattern of drug use disrupts his own life, let alone that it poses a threat to public safety. Yet the Trump administration, despite its avowed commitment to "protecting Second Amendment rights," wants the Supreme Court to reject the 5th Circuit's logic and reinstate the case against Hemani.

Counterintuitively, a bunch of blue states that have legalized marijuana are siding with the Trump administration, condemning a decision in which the country's most conservative appeals court upheld the constitutional rights of cannabis consumers. The attorneys general of those states evidently decided that protecting legislators' discretion to regulate firearms was more important than defending the proposition that marijuana should be treated like alcohol.

The briefs urging the Supreme Court to uphold the 5th Circuit's ruling also feature some strange bedfellows. They include the Drug Policy Alliance, the National Organization for the Reform of Marijuana Laws and the National Association of Criminal Defense Lawyers as well as leading Second Amendment groups such as the National Rifle Association, Gun Owners of America and the Firearms Policy Coalition.

Even the American Civil Liberties Union, which has not previously shown much interest in defending the Second Amendment, is siding with Hemani. That position is pretty striking because the ACLU argued for decades that the right Hemani wants to vindicate does not exist.

"This is the first time that we have entered a case affirmatively on behalf of an individual making a Second Amendment claim," said Brandon Buskey, director of the ACLU's Criminal Law Reform Project and one of the attorneys listed in Hemani’s brief. "Now that the Supreme Court has recognized this as a fundamental right, we see this as an important civil liberties issue."

To justify restrictions on that right, the Supreme Court has said, the government must show they are "consistent with this Nation's historical tradition of firearm regulation."

It is not hard to see why the Second Amendment groups think Hemani's prosecution fails that test.

The Trump administration's argument hinges on equating even occasional or moderate cannabis consumers with people who would have been deemed "habitual drunkards" at the founding. As Justices Neil Gorsuch and Sonia Sotomayor noted during Monday's oral argument, that comparison makes little sense.

Even people who are inclined to support gun control should be able to see the problems with the government's analogy, which aims to treat people as criminals for no good reason. The resulting injustice is palpable enough that it has provoked outrage from Americans across the political spectrum.

Jacob Sullum is a senior editor at Reason magazine.