United States v. Hemani

The government argues that the historical tradition of disarming dangerous or irresponsible individuals justifies disarming all unlawful drug users. To make this argument, they compare laws about modern drug users to founding-era restrictions on intoxicated persons, invoking historical habitual drunkard laws as precedent.

Hemani argues that under Bruen's historical tradition framework, there is no founding-era analog for disarming people based on drug use.

First, 'Drug user' as a category didn't exist at the founding. And early restrictions on heavy users of alcohol are not analogous to modern drug laws.

Second, unlike domestic violence abusers (upheld in Rahimi), there is no specific, individualized nexus or crossover between drug use status and a demonstrated threat to others.

Argued March 2, 2026. During oral argument, the Court appeared skeptical of the government's broad reading of §922(g)(3). Several justices questioned whether the statute could survive Bruen's historical-tradition test given the lack of founding-era analogs for drug-based disarmament.

Justice Barrett repeatedly raised a hypothetical over whether her husband could lose his 2A rights for using her prescribed Ambien.

The 5th Cir. Invalidated § 922 (g)(3) because a plain reading of the statute applied the restriction to people who were not actually, or necessarily, impaired at the time that they possessed the firearm. The 5th Cir. Restricted the statute's application to defendants who were "intoxicated at the time." The government notes that this decision created a 3-way circuit split with the 7th cir. upholding the statute and the 8th striking it for different reasons. The 8th Cir. required a case-by-case evaluation on the defendant's "credible threat to the physical safety of others" before the statute could be applied.

The government relies on historical "Habitual Drunkard Laws" as their historical analogue. But these laws were not written to apply to just anyone who drank — that was essentially everyone at the time of the founding. Habitual drunkard laws targeted people who were incapable of managing their lives as a direct result of their excessive alcohol use. Someone you might actually call "a drunk," whether intoxicated at the moment or not. The government's attempt to map these onto a statute that covers any and all unlawful drug use, regardless of how the person behaves, fails the Bruen analogue test.

The government's reading of §922(g)(3) sweeps broadly, and covers anyone who uses any controlled substance, regardless of how much, how often, or whether they were actually impaired at the time they possessed a firearm. Under this theory, a person who uses marijuana once every few weeks in a state where it is legal is treated the same as a person with a severe addiction that impairs daily functioning.

Justice Barrett's concurrence in Rahimi warned that a regulation fails Bruen if it sweeps too broadly relative to its historical justification. The government's own analogues to habitual drunkard laws targeted people whose substance use made them demonstrably incapable of functioning. §922(g)(3) requires no such showing. It disarms based on status, not demonstrated incapacity.

Barrett's concern at oral argument about a person who uses their spouse's Ambien was directly cited in Gorsuch's opinion.

The powers of Congress are constitutionally limited to an enumerated (listed out) power, generally found in Article I. 18 U.S.C. § 922(g)(3) is written using Congress's power to regulate interstate commerce — commerce that crosses state lines. To that end, the statute criminalizes possession of a firearm by an unlawful drug user "in or affecting commerce." And that final phrase has been read to include nearly every action imaginable.

Justice Thomas cites the difficulty of overcoming the tendency of courts to include under the umbrella of commerce nearly everything. He points out that SCOTUS has not granted a commerce clause challenge in 26 years, reinforcing to lower courts that the label means basically anything. Thomas says that the time may be ripe to revisit that.

Thomas concurs in the judgment and the court's opinion, but says that § 922(g)(3) "appears to exceed Congress's enumerated power to regulate interstate commerce." He believes it's time to reevaluate the breadth of the commerce clause — and that this may be an example of Congress overstepping its powers.

Bruen replaced a means-ends evaluation to assess the constitutionality of firearms regulations with a new "history and traditions" test. But this metric is vulnerable to inconsistent and arbitrary applications and leaves no room to consider the "real and present stakes of the problems facing our society today."

By contrast, the means-ends test has proven itself extremely workable and is "squarely within the competence of the courts." It's a flexible test that adjusts to changing circumstances and fact patterns and has been effectively applied to the First, Fifth, and Fourteenth Amendments. It would also be a more straightforward method of scrutinizing restrictions like the one in this case, presenting it in terms of three familiar questions:

• How severe is the burden?
• Does the government have a strong interest in imposing this firearms restriction?
• Is the law written as narrowly as necessary under the circumstances, or is it overly broad?

We should consider retiring the Bruen test and return to a more workable means-ends test.