More than one Supreme Court justice this week expressed skepticism over the federal ban on marijuana users possessing weapons.
Justice Neil Gorsuch asked the government lawyer defending the Department of Justice’s (DOJ) position about firearm restrictions during the Founding Era for an individual who is a “habitual drunkard.”
And what defined being a drunkard in the early days of the Republic?
Justice observed that the Founding Fathers were hardly teetotalers
Gorsuch referred to the American Temperance Society, noting that the anti-alcohol movement characterized an occasional drunkard as one who consumes EIGHT SHOTS of whiskey a day. How did the Founding Fathers treat drinking?
“John Adams took a tankard of hard cider with his breakfast every morning,” the jurist noted. “James Madison reportedly drank a pint of whiskey every day. Thomas Jefferson said he wasn’t much of a user of alcohol. He only had three or four glasses of wine a night.”
Needless to say, these gentlemen were never stripped of their Second Amendment rights for imbibing.
Should marijuana use automatically erase gun rights?
The case that finally brought the simmering issue before the Supreme Court was U.S. v. Hemani. Prosecutors argued that Ali Hemani’s admitted marijuana use while possessing a weapon correctly disqualified him legally from bearing arms.
At issue this week, at least to Gorsuch, was just how much pot Hemani consumed in his “every other day” habit.
“We don’t even know the quantity of how much he uses every other day,” the justice charged. “What if he took one gummy bear with a medical prescription in Colorado? Let’s say he had one to help him sleep every other day. Disarm him for life?”
Court observers believe that most justices from all sides of the ideological spectrum expressed doubt over the government’s case.
Gorsuch noted the unworkable present situation nationally, where marijuana “is sort of illegal and sort of isn’t.”
But with virtually half of the country now able to consume pot recreationally and even more medicinally, this issue needs resolution sooner rather than later.
Justice Amy Coney Barrett questioned the government’s representatives on whether a person who took one of their partner’s prescription Ambien to go to sleep would be stripped of their gun rights. The DOJ lawyer had to admit that they would fall under the federal prohibition.
Barrett agreed with the need to keep guns away from dangerous individuals but questioned the law’s legality. “I just don’t see anything in the scheme that actually reflects Congress’ judgment that this makes someone more dangerous.”
About 300 people are charged with this crime annually, and they could face up to a 15-year prison sentence. This was part of the DOJ’s argument as it claimed that drug users losing gun rights is a “limited, inherently temporary” restriction.
According to this argument, if that person ceases to use drugs, they are no longer affected.
Of course, the burden is on the DOJ to prove to the high court that marijuana users should be disarmed, and there’s more.
Thanks to the Supreme Court’s 2022 Bruen decision, present-day gun control laws must be connected to Founding Era statutes affecting the right to keep and bear arms. This week’s reactions from the justices indicate some concern that the modern prohibition is not grounded in the nation’s history and tradition.
The DOJ struggled in vain to correlate the 2026 federal law with earlier practices. “This restriction provides a modest, modern analogue of much harsher Founding Era restrictions on habitual drunkards, and so it stands solidly with our Nation’s history and tradition of regulation.”
Hopes are high that this prohibition for marijuana users will be struck down. The court could hand down a sweeping ruling or only address the case before them.
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