MA GUN LAWYER

Oral Argument in United States v. Hemani (No. 24-1234)

On March 2, 2026, the U.S. Supreme Court heard oral argument in United States v. Hemani, a case that may significantly reshape how far Congress can go in disarming Americans based on drug use.

The government’s position was straightforward: Congress may temporarily disarm “habitual” users of illegal drugs under 18 U.S.C. § 922(g)(3), and that restriction is consistent with the historical tradition recognized in New York State Rifle & Pistol Association v. Bruen and refined in United States v. Rahimi.

But as the Justices’ questioning made clear, this case is about much more than marijuana. It strikes at the heart of whether modern legislatures can define “dangerousness” for Second Amendment purposes—or whether that power is frozen in 1791.

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The Government’s Theory: Habitual Drug Use = Founding-Era “Habitual Drunkards”

Principal Deputy Solicitor General Sarah Harris opened by arguing that the Second Amendment permits Congress to disarm “habitual marijuana users while they persist in using frequently.”

Her core historical analogue: Founding-era laws targeting “habitual drunkards.”

According to the US government:

• Historical vagrancy and civil commitment laws allowed confinement of habitual drunkards without individualized dangerousness findings.
• Surety laws imposed bond requirements or jail time.
• These laws reflected a class-based judgment that certain categories of people posed heightened risk when armed.
• Section 922(g)(3) is actually less restrictive because drug users can regain rights by ceasing use.

The government emphasized that this is not a permanent disarmament. It is status-based and temporary.

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The Justices’ Skepticism: Where Is the Founding-Era Match?

Several Justices—particularly Gorsuch and Jackson—pressed the government on whether the analogy really holds under Bruen.

Justice Gorsuch raised a striking historical point: what qualified as a “habitual drunkard” in the 18th century was far more extreme than what the government claims today. The American Temperance Society once described eight shots of whiskey per day as only an “occasional” drunkard. Founding-era statesmen consumed alcohol daily.

The record in Hemani? Marijuana use “every other day.”

That raised the critical question:

Did the founding generation consider someone who uses an intoxicant periodically—but not while armed—dangerous enough to be disarmed?

Justice Jackson sharpened the constitutional problem. Under Bruen, modern legislatures do not get to make fresh policy judgments about who is dangerous. They must follow the founding-era understanding. If Congress today believes marijuana users are dangerous, that belief is irrelevant unless it matches a historical analogue.

As Justice Jackson put it, the modern legislature cannot expand the class of disarmable citizens beyond what the founding generation accepted.

That is a devastating line of questioning for the government’s theory.

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Illegality as the Government’s Anchor — and Its Weakness

A major theme in the government’s defense was illegality.

Marijuana is illegal under federal law (currently Schedule I). Therefore, unlawful users fall outside the Second Amendment’s protection.

But this position triggered further problems:

• Marijuana is legal in many states.
• The federal government is actively considering rescheduling it to Schedule III.
• The statute applies to all scheduled substances—even drugs that can be lawfully prescribed (e.g., Ambien).

Justice Barrett posed a powerful hypothetical: if one spouse lawfully takes Ambien with a prescription and the other unlawfully takes the same pill, does only the unlawful user become “dangerous” for Second Amendment purposes?

If dangerousness turns entirely on the government’s scheduling choice, then Congress can effectively redefine constitutional rights by relabeling substances.

That concern loomed heavily over the argument.

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What This Means for Massachusetts’ “Unsuitability” Law

For Massachusetts residents, the implications are enormous.

Under G.L. c. 140, § 131, a licensing authority may deny or revoke a firearms license if the applicant is deemed “unsuitable”—essentially a subjective, discretionary public safety determination.

This case puts that entire structure under pressure.

Here’s why:

1. Bruen Requires Historical Anchoring

If the Supreme Court rejects the government’s attempt to define dangerousness” through modern scheduling judgments, then:

• A licensing chief in Massachusetts cannot simply assert that someone “may pose a risk.”
• There must be a historical analogue from 1791 supporting disarmament of that category of person.

The Massachusetts “unsuitability” standard is far more open-ended than § 922(g)(3). If Congress cannot rely on modern assessments of drug risk, how can a local police chief rely on subjective impressions?

2. Class-Based Disarmament Is Under Scrutiny

The Hemani argument makes clear that class-based disarmament must mirror founding-era categories.

Massachusetts routinely disarms individuals based on:

• Sealed matters
• Dismissed charges
• Non-criminal allegations
• Generalized “risk” assessments

If the Court holds that even habitual marijuana use lacks sufficient historical pedigree, then Massachusetts’ discretionary regime becomes constitutionally suspect.

3. “Temporary” Restrictions May Not Save the Law

The government repeatedly argued that § 922(g)(3) is temporary—stop using drugs and rights are restored.

But Massachusetts licensing decisions often function as long-term or indefinite gun license suspensions and denials, even without criminal convictions.

Logic would seem to dictate that if temporary federal restrictions struggle under Bruen, discretionary, indefinite state restrictions face even greater peril.

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The Broader Stakes

This case may answer a foundational question:

Who defines dangerousness for Second Amendment purposes—the founding generation or modern legislatures? Or, in the case of Massachusetts, chiefs of police?

If the Court tightens the Bruen test and rejects modern legislative expansions, then:

• Federal drug-user disarmament may be narrowed.
• Other 922(g) categories could face renewed challenges.
• State discretionary licensing schemes—especially Massachusetts’ “unsuitability” framework—will be in serious constitutional jeopardy.

If, on the other hand, the Court accepts the government’s analogy, it signals a willingness to allow broader class-based disarmament grounded in generalized public safety judgments.

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Final Thoughts

Today’s argument revealed real tension within the Court.

The conservative bloc appeared divided between:

• A strict historical approach (Gorsuch, Jackson’s textualist framing),
• And a more pragmatic extension of Rahimi.

What is clear is this:

The days of reflexive deference to legislative declarations of “dangerousness” are over.

For Massachusetts gun owners—and for those challenging the “unsuitability” regime—the outcome in United States v. Hemani may become a constitutional lever.

If the Court insists on a true founding-era analogue, the discretionary licensing system in the Commonwealth stands on very thin ice.

The Second Amendment, as the Court has repeatedly said, is not a second-class right. Despite this, and speaking of occasional drug use and the 2nd Amendment…

I, for example, have a case in which my client’s LTC was suspended why?

Because during a medical emergency his nurse girlfriend while on the 911 dispatch was said to have stated that a great many years ago he had briefly used a controlled substance. Yes, he became “unsuitable” in an instant.

The Justices now must decide whether the principle of the right to keep and bear arms not being a second-class right has real any real meaning in their eyes. Massachusetts seems to be consistently answering that question resoundingly in the negative.

The truth is under our Constitutional system the Massachusetts government possesses no such luxury.