Yesterday, the Supreme Court unanimously struck down a pretext that the feds have used to nullify the constitutional rights of more than fifty million Americans.
The Gun Control Act of 1968 prohibited gun ownership by anyone who is “an unlawful user of or addicted to any controlled substance.” That law was a Damocles Sword that created a pretext for the feds to forcibly disarm and imprison up to 10% of the American public.
The court’s landmark decision overturned a conviction by Ali Hemani, a Texan whose home was searched in 2022 by the FBI “after his family had come under suspicion because of its ties to Iran,” The New York Times reported. Hemani, who was 25-years old at the time, had a Glock locked in a safe and also had sixty grams of marijuana. Hemani was not a gun-owning psychopath out of central casting; instead, he was a University of Texas graduate and a former high school football player. Hemani’s lawyers asserted that federal prosecutors unjustifiably made “‘terrorism’-related insinuations about Mr. Hemani and his family based on their religious and ethnic identities” at his trial.
The marijuana gun ban was challenged in multiple lawsuits, driving the Justice Department berserk. In a separate 2022 case, the Justice Department justified the ban by invoking previous government prohibitions on gun ownership by Catholics, American Indians, and panhandlers. Federal Judge Allen Wyrick slammed the feds for relying on “ignominious historical restrictions” and rejected the government’s claim that a person’s “mere status as a user of marijuana justifies stripping him of his fundamental right to possess a firearm.” Challenging that ruling, the Justice Department modified its argument and justified disarming potheads because the government previously locked up “lunatics.” As Reason’s Jacob Sullum noted:
“According to the Biden administration, it was perfectly reasonable to put cannabis consumers in the same category as…children, ‘armed revolutionaries,’ and ‘mental defectives.’”
The Justice Department also claimed that only “law-abiding, responsible citizens” are permitted to own guns. But that was an invitation for Congress to pass sweeping laws that would permit federal prosecutors to nullify constitutional rights.
Donald Trump’s Justice Department picked up the Biden-era anti-gun rights lawsuits without missing a step. Trump administration lawyers sought to justify the federal prohibition based on comparing casual drug users to “habitual drunkards.” Justice Neil Gorsuch, who wrote the unanimous opinion, noted that “apart from pointing to habitual drunkard laws, the government has not even attempted to prove that any other specific historical principle might justify its prosecution in this case.”
Gorsuch scoffed that the government “asks us to conclude that anyone who regularly uses marijuana is categorically violent and dangerous without any further showing.” Gorsuch warned that granting “the government that kind of ‘broad power to designate any group as dangerous and thereby disqualify its members from having a gun,’ would risk allowing it to ‘quickly swallow’ the Second Amendment.” Gorsuch noted that the federal ban on unlawful users of “controlled substance” was so broad that it could criminalize gun owners such as “a husband who regularly takes his wife’s prescription Ambien to sleep and a college student who routinely uses a friend’s Adderall to cram for exams.” In a concurring opinion, Justice Samuel Alito wrote:
“Marijuana use today is like alcohol use at the founding. It is widespread and increasingly considered socially acceptable in many quarters. And from a practical standpoint, law enforcement widely tolerates the use of marijuana.”
Prior to the Supreme Court decision, potheads were America’s biggest gun offenders. Thirty-six states voted or passed legislation to authorize medicinal use of marijuana, and many states also permit recreational use of marijuana. But federal agencies considered those laws null and void. The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) prohibited gun and ammunition sales to anyone who uses of marijuana or other narcotics, claiming that they pose a risk of “irrational or unpredictable behavior.”
ATF Form 4473, the Firearms Transaction Record, mandatory for any purchase from a licensed gun dealer, specifically inquires whether the “applicant is an unlawful user of marijuana.” Nonviolent marijuana users faced “up to 15 years in prison for illegal firearm possession, up to 15 years for ‘trafficking in firearms’ by obtaining a gun, and up to 10 years for failing to report cannabis consumption” on Form 4473. In 2018, two Maine marijuana users were indicted and later convicted for federal firearms violations after they failed to disclose that they were “unlawful” users of marijuana on that form (regardless that marijuana is legal in Maine).
Federal prosecutors use “the nation’s drug laws as a key tool to keep guns out of the wrong hands”—including those of “anti-government extremists,” The Dallas Morning News reported in 2021. To spur a federal firearms investigation, “social media photos of someone using marijuana or other drugs will suffice.” Law professor Dru Stevenson asserted that federal drug laws have become, “functionally speaking, our society’s primary mechanism of gun control.”
More than fifty-two million Americans used marijuana during 2021, according to the National Survey of Drug Use and Health, and another ten million people used other illicit substances. Actual usage is higher because some people are paranoid about confessing crimes to federally funded survey takers. Roughly 40% of American households possess firearms. Thus, roughly twenty-five million gun owners were probably felons because of their possession or use of marijuana or other illicit indulgences. Though most gun owners who violate marijuana laws pose no threat, federal agencies could have potentially rounded them up as if they were hostile Indians being confined to a reservation.
The targeting of Hemani illustrates how laws that criminalize tens of millions of Americans create sweeping discretionary power for prosecutors. Prosecutors or political string pullers also gain power to decree who will suffer no consequence for violating the law.
In 2018, Hunter Biden, the son of President Joe Biden, purchased a .38 Revolver and signed the federal form attesting that he was not a user of illegal narcotics. However, in his 2021 memoir, Hunter Biden trumpeted stories of smoking crack cocaine in the same period he bought the gun.
In June 2023, the Justice Department announced that it had offered a plea deal to Hunter that would involve no jail time for his firearms offense. Instead, he was entitled to enter a pretrial diversion program to deal with his drug abuses. Other private citizens received no such sweetheart deals for “lying and buying.” In 2019, a federal prosecutor said that rapper Kodak Black needed “tough love,” and he was sent to prison for three years for false claims on his firearms form. Two months before the feds announced the plea offer for Hunter, “a woman in Iowa was sentenced to a year in prison for lying about her address and drug use on Form 4473,” reported Gun Owners of America.
In June 2024, a Delaware jury convicted Hunter of three charges tied to his drug use and firearms purchase and possession. Six months later, his father issued a sweeping pardon that absolved Hunter for any and all crimes he had committed in the previous ten years.
Despite the victory at the Supreme Court, gun owners should remember that most of Congress, the Justice Department, and the Trump White House remain dire threats to their rights and liberties. Any politicians who brazenly seeks to destroy the Second Amendment cannot be trusted to respect any other constitutional right.
