Blue Brief 2025-2026

Donald Dripps

Warren Distinguished Professor of Law

Dancing with the Elephant: Gun Rights Again (United States v. Hemani and Wolford v. Lopez) III.

T his term the Court decided two Second Amendment cases. The first, United States v. Hemani , reversed Hemani’s conviction for violating 18 U.S.C. § 922(g)(3) . That statute makes it a felony for anyone addicted to a controlled substance, or any “unlawful user” of a controlled substance , to possess a firearm. Federal agents investigating suspected terrorism executed a search warrant at Hemani’s home. There, they found a gun and some marijuana. Hemani admitted he used marijuana on a regular basis. The § 922(g)(3) prosecution followed. The justices unanimously held that Hemani’s conviction violated the Second Amendment . Following the analysis directed by New York Rifle & Pistol Assn. v. Bruen , Justice Gorsuch’s majority opinion easily concluded that the application of § 922(g)(3) to Hemani infringed his right “to keep” a gun. Justice Gorsuch then rejected the government’s examples of historical analogues. The most plausible of these was the historical practice of denying

firearms to habitual drunkards, who were understood to be incompetent 24/7. One might be a regular and excessive drinker without falling into this category. Ergo, mere “use” of a controlled substance was not analogous to traditional practice. The Court did not declare § 922(g)(3) unconstitutional on its face. The opinion expressly did not even address whether the government could bring a prosecution under § 922(g)(3) accompanied by individualized proof that the defendant’s use of marijuana (or any other drug) renders him a danger to himself or others. Or proof that a certain drug always renders its users dangerous because of its potency or for some other reason. None of those issues is before us and we do not pass on them either way. Despite this qualification, the Court’s characterization of the historical analogy to disarming habitual drunkards as limited to cases

UNIVERSITY OF SAN DIEGO SCHOOL OF LAW | Faculty Review of 2025-2026 U.S. Supreme Court Term | Page 11