The Supreme Court said Monday it will take up a case challenging the federal ban on gun possession by drug users, signaling the justices’ readiness to bring more clarity to Second Amendment law.
Lower courts have split on the issue, with some finding the ban on unlawful drug users having a gun to be constitutional and others saying the law is now in question following recent Supreme Court precedent.
The Department of Justice asked the Supreme Court to take the case after having the 5th U.S. Circuit Court of Appeals invalidate a prosecution against drug user Ali Hemani, finding the categorical ban on drug users owning guns went too far.
U.S. Solicitor General D. John Sauer had urged the justices to hear the case.
“The case presents an important Second Amendment issue that affects hundreds of prosecutions every year: whether the government may disarm individuals who habitually use unlawful drugs but are not necessarily under the influence while possessing a firearm,” Mr. Sauer said in briefs.
Drug users are one of a list of “prohibited persons” in section 922(g) of Title 18 of the U.S. Code. Among the other categories are felons, fugitives, illegal immigrants, the mentally infirm and those subject to domestic violence protection orders.
Hunter Biden, son of the former president, was convicted under the unlawful drug user provision. His father issued him a pardon for those crimes.
The list of prohibited persons has gotten new scrutiny since the Supreme Court’s ruling in the Bruen case three years ago.
That decision overturned a state law that had made it difficult to obtain a concealed-carry permit. In the ruling, the justices said that to survive constitutional scrutiny, gun control laws had to be the kind of restrictions that would have been countenanced by the founders.
Courts have said that laws barring dangerous persons from owning guns were common at the founding, but deciding who exactly qualifies as dangerous has been contentious.
Last year, the Supreme Court upheld as constitutional the federal prohibition on someone subject to a domestic violence restraining order.
Mr. Hemani’s case stems from an investigation by authorities who found cocaine, marijuana and evidence that he was abusing promethazine, an antihistamine that has found an illegal market as a relaxer drug. He also had two firearms.
He was indicted in 2023 on a charge of being in possession of a gun while also a user of a controlled substance.
His lawyers argued that the ban, written in 1968, has no “historical analogue” from the founding era, particularly when applied to Mr. Hemani’s case, where he argued he was not a dangerous user because he was not intoxicated at the time the guns were found.
Judge Amos Mazzant agreed and dismissed the indictment in a ruling last year.
The 5th Circuit, in January, upheld that decision, indicating that the law would only be valid in cases where someone was actually impaired by drugs at the time of possession.
Other appeals courts have come out differently.
The 8th Circuit struck it down on somewhat different grounds. The 7th Circuit upheld the law. And the 3rd Circuit, in a ruling in July, largely upheld the ban but said courts must do an independent assessment of each case to determine whether the defendant’s situation fits.
Mr. Sauer said that made Hemani’s situation the “archetypal case” for the justices to weigh in and settle the issue.
Mr. Hemani’s lawyers had urged the court not to take the case.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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