Government Seeks SCOTUS Review of 2nd Amendment Gun Possession by Pot Smoker Cases – Update for August 28, 2025

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

GUNS FOR DOPERS

The Supreme Court next month will take up a Dept of Justice request to hear a case on the constitutionality of 18 USC § 922(g)(3), the statute criminalizing possession of a gun by a drug user, even as the 11^th Circuit weighed in last week with a holding that a user of medical marijuana cannot be prosecuted under the statute consistent with the 2^ndAmendment.

The 5^th Circuit held last winter that Ali Danial Hemani’s past drug use could not be relied on to prosecute him under § 922(g)(3). Limiting the statute to blocking gun possession only while a person is high effectively guts the statute, DOJ argues in its petition to the Supreme Court.

The government is seeking certiorari on four cases, asking the justices to focus on one involving Hemani, a dual citizen of the United States and Pakistan, who was charged with unlawfully owning a pistol because he regularly smoked marijuana.

Meanwhile, the 11^th Circuit last week held that lawful users of medical marijuana under Florida law (despite the fact that possession and use are still unlawful under federal law) cannot be prosecuted under § 922(g)(3) for possessing a gun.

Two medical weed users brought an action in federal court for a declaratory ruling that § 922(g)(3) could not prevent them from having guns. The district court denied their request, holding that the laws and regulations at issue “were consistent with the nation’s historical tradition of firearms regulation and therefore did not violate the 2nd Amendment.”

After holding the case in abeyance until the Supreme Court decided Rahimi, the 11^th reversed the district court. “After careful review,” the Circuit wrote, “we hold that the district court erred in concluding that the plaintiffs did not state a claim for relief. We reach this conclusion because, when viewed in the light most favorable to the plaintiffs, the allegations in the operative complaint do not lead to the inference that the plaintiffs are comparatively similar to either felons or dangerous individuals—the two historical analogues the Federal Government offers in its attempt to meet its burden. We therefore vacate the district court’s order…”

When the Government seeks Supreme Court review, it usually gets it. The constitutionality of § 922(g)(3) – which should have implications for § 922(g)(1) felon in possession – may make it onto the Supreme Court docket this coming term.

United States v. Hemani, Case No. 24-1234 (certiorari filed June 4, 2025)

USA Today, Guns or weed? Trump administration says you can’t use both (August 21, 2025)

Florida Commissioner of Agriculture v. Attorney General, Case No. 22-13893, 2025 U.S.App. LEXIS 21356 (11th Cir. August 20, 2025)

~ Thomas L. Root