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SUPREMES AVOID BROAD BRUSH ON HEMANI
Everything these days comes with a narrative. The Knicks only lose one game since April because President Trump was there, but win the next game because Taylor Swift brings the magic. Antifa “operatives” spiked the Reflecting Pool with algae before being arrested by Park Police.
Narratives attach to Supreme Court cases as well.
Yesterday, SCOTUS decided that 18 USC § 922(g)(3) – which prohibits people who illegally use controlled substances from possessing guns – could be unconstitutionally applied in certain uses. Defendant Ali Hemani was caught with cocaine, some weed and a gun in his home, and charged under § 922(g)(3). The US District Court for the Eastern District of Texas threw out the case, holding that making gun possession a felony because Ali liked to blow a little dope violated his 2nd Amendment right to keep and bear arms. The 5th Circuit agreed.
The high court’s decision is a “rollicking opinion” that is “worth a read,” the Wall Street Journal said this morning. “Yet it provides few hints of how to draw the line in tougher cases.”
President Trump’s Dept of Justice brought the case to the Supreme Court. The narrative was that DOJ thought it had the perfect unsympathetic defendant, a dual US and Pakistani citizen who had ties to the Iranian Revolutionary Guard Corps and went to Iran to honor Iranian general Qasem Soleimani, killed by a US drone strike. The government claimed Ali’s mother was seen on video saying she hoped her sons would become martyrs for Iran. The narrative was that SCOTUS thought that slamming a bum like Ali would be an easy lift.
Others (including me) thought that the Supreme Court could use a slam-dunk 2nd Amendment case like finding Ali Hemani, who used a little recreational pot and owned a Glock, was constitutionally protected, as a springboard to addressing the stickier questions about the constitutionality of § 922(g)(1), the subsection that bans all felons from ever possessing a gun.
Yesterday, the Court disappointed both narratives, holding in a 9-0 opinion that as applied to Ali, § 922(g)(3) violated his 2nd Amendment rights. The opinion, by Justice Neil Gorsuch, was painfully minimalist:
In many respects, this case is a narrow one. We do not address efforts to ban addicts… or those presently intoxicated, from possessing a firearm. We do not address other prophylactic laws Congress might adopt after determining that users of a particular drug pose a special risk of misusing firearms… We do not address 18 U.S.C. § 922(g)(1)’s provision disarming individuals convicted of felonies (often including drug-related ones). Ibid. We do 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.
Not that other Justices were unwilling to raise other issues. Justices Samuel Alito and Elena Kagan, the two who concurred in the judgment only, complained that they wanted to see a narrower opinion. Justices Ketanji Brown Jackson and Sonia Sotomayor spend five pages of their own blasting the New York State Rifle & Pistol Assn. v. Bruen test – on which modern 2nd Amendment jurisprudence turns – as a “failed… experiment” that should be overturned. Justice Clarence Thomas was expansive in a different direction, writing his own concurring opinion that all of § 922(g) stretches the Commerce Clause too far: “Congress cannot regulate the possession of every thing that ever traveled across state lines.”
So Hemani is a win for what Ohio State University law professor Doug Berman estimates to be the “few thousand people have been convicted and sentenced under § 922(g)(3) in the last decade, and there could be many thousands more with such a conviction on their records. But, as just noted, Hemani does not necessarily make all these convictions suspect unless the case facts are similar to those in Ali Hemani’s prosecution.”
For those who hoped the case would be a blaze on the trail to getting the 2nd Amendment read into § 922(g)(1), however, Hemani falls short.
United States v. Hemani, Case No. 24-1234, 2026 U.S. LEXIS 2559 (June 18, 2026)
Sentencing Law and Policy, How many (thousands of) 922(g)(3) convictions are now suspect after Hemani? (June 18, 2026)
~ Thomas L. Root