WASHINGTON − The Trump administration, which has ardently backed gun rights, will nonetheless try to convince theSupreme Courton March 2 that frequent pot smokerscan be imprisonedfor having a gun.
The Justice Department will make that argument even as the administration ismoving to reclassifymarijuana to a less dangerous category of drugs – and as cannabis is legal in some form in the majority of states.
That's just one of the noteworthy aspects of thecase, the second involving the constitutional right to bear arms that the justices are deciding this year.
Their rulings could clarify the legal test for gun regulations the court created in recent years that has led to a spike in challenges to gun rules. It's also caused much confusion in lower courts as they try to apply the test.
But the justices could sidestep the Second Amendment aspect and decide that the federal law prohibiting an "unlawful user" of a controlled substance from having a firearm is problematic for other reasons. That might limit the reach of the ban to anyone "addicted" to marijuana or any other drug considered dangerous enough to be regulated by the government, rather than also covering the estimated tens of millions of Americans who recreationally use pot and other drugs.
Here's what you need to know.
What is the case about?
The government is defending its prosecution of Ali Danial Hemani, a dual citizen of the United States and Pakistan whom the FBI had been monitoring because of his alleged connection to Iran's paramilitary Revolutionary Guard. The government has designated the guard a global terrorist group.
During a 2022 search of his Texas home, Hemani told the agents he had a Glock 9mm pistol and also said he used marijuana "about every other day."
Although the government tried to detain Hemani on more serious allegations of criminal activity, he was charged only with having a gun while being an unlawful user of marijuana. That's a felony, punishable by up to 15 years in prison.
How did the lower court rule?
The New Orleans-based 5th U.S. Circuit Court of Appeals said that the gun ban can't be applied to Hemani under theSupreme Court's landmark 2022 ruling that gunprohibitions must be grounded in history that is"consistent with our tradition of gun regulation."
While history and tradition support "some limits on apresentlyintoxicated person's right to carry a weapon," the appeals courtsaid, "they do not support disarming a sober person based solely on past substance usage."
Why is the Trump administration defending the law?
In theother gun rights casethe Supreme Court is considering this term, the Justice Department opposes Hawaii's restrictive rules for guns in public places.
"As I said soon after taking office, the Second Amendment is not a second-class right," Attorney GeneralPam Bondiwrote on Xafter filing a Supreme Court brief challenging Hawaii's law. "My Justice Department will continue to be the most pro-Second Amendment Justice Department in history."
More:Supreme Court skeptical of Hawaii gun law, nicknamed 'Vampire Rule'
But Hemani's case, the government argues, "presents narrow circumstances" where the government can meet the "rigorous burden" imposed when limiting gun rights.
"A person regains his ability to possess arms as soon as he stops habitually using drugs," lawyers for the Justice Department wrote in a filing.
The Brady gun control advocacy group was on the opposite side of the Hawaii case but backs the Justice Department's defense of the federal ban on drug users having guns.
"We have major disagreements with the Trump administration on gun violence prevention," said Douglas Letter, the group's chief legal officer. "That doesn't mean they're always wrong."
Is Trump trying to declassify marijuana?
PresidentDonald Trumphasdirected the Justice Departmentto work on reclassifying marijuana as a less dangerous substance.
"The policy of the United States, it appears, is that cannabis may be useful medicine for some patriotic Americans − while also being the spark that twists ordinary people into maniacs who are primed to attack the police," the libertarian Cato Institute and the Rason Foundation wrote in afilingsupporting Hemani.
The Justice Departmenttoldthe Supreme Court that the purpose of the reclassification is to "facilitate medical marijuana and CBD research" while also continuing to restrict the sale of products that pose serious health risks.
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Still, Heather Trela at the Rockefeller Institute of Government, a public policy think tank, said the pending rescheduling "does potentially weaken the federal government's argument of the inherent dangers of cannabis use."
If there are medical uses for a controlled substance, the justices might question whether there's a difference between prohibiting gun ownership for those who smoke pot recreationally versus those who use it medicinally, Trelawrote in a previewof the oral arguments.
How often is the law used?
The goverment says it regularly charges more than 300 people each year with having a gun while being either an unlawful user of a controlled substance or a drug addict. The Justice Department said that provision "plays an integral role" in a set of rules designed to keep firearms out of the hands of dangerous or irresponsible people. The Gun Control Act of 1968 was passed in response to the assassinations of President Robert F. Kennedy and Martin Luther King, Jr.
But the National Association of Criminal Defense Lawyers says the provision of the act at issue is being used less for public safety reasons and primarily as a tool for selective prosecutions, leverage in plea bargains or "as a means of incarcerating otherwise law-abiding citizens when the government's primary theory falls short."
Hemani's case, the association said in a afiling, makes their point. The government couldn't make its preferred charges stick, so the law at issue provided an easy fallback "because both drug use and firearm ownership are ubiquitous features of American life."
How might the case affect gun rules generally?
In its landmark 2022 decisionstriking down New York's lawrequiring residents to have a good reason to obtain a license to carry a handgun, the Supreme Court created a new "historical tradition" test for firearm rules.
That forced a reassessment of perhaps thousands of Second Amendment rights cases around the country, said Eric Ruben, a law professor at Southern Methodist University.
In a 2024 decision upholding a lawbanning domestic abusers from owning guns, the court tried to clarify how close a modern law has to be with a historical one for it to be constitutional.
But the lower courts are still "all over the place in terms of what you're supposed to be analogizing to," Ruben said.
Adam Winkler, a UCLA School of Law professor, said the confusion has opened the door for judges to impose their own preferences. Judges appointed by Democrat presidents are upholding gun laws even when there's weak historical evidence while Republican-appointed judges are striking down laws for lack of a historical "twin" – even though the Supreme Court has said that's not the standard, Winkler said.
"What we've seen is a lot of judicial activism in this space," he said. "The Supreme Court has not provided much helpful guidance."
Could the court avoid ruling on the Second Amendment?
It's possible, however, that the justices could decide Hemani's case without clarifying their constitutionality test for gun rules.
"This case has been billed as the Court's next big Second Amendment battle," Joel Johnson, a former Justice Department attorney who teaches at Pepperdine Caruso School of Law, wrote in afilingsupporting Hemani. "But it need not be."
Both Johnson and Hemani's lawyers argue that the "unlawful user" provision of the statute should fall because it's impermissibly vague. The law doesn't say, for example, how much pot you have to smoke, how often and how recently to be barred from having a gun.
"It's simply impossible for an ordinary person to understand what is prohibited," said Brandon Buskey, director of the ACLU's Criminal Law Reform Project. The ACLU is one of the legal groups representing Hemani.
"I think the government position is really confusing the idea of drug use with drug abuse," Buskey said.
The Justice Department says someone has to be an "habitual" user to be banned from having a gun. But that's different from what the government has said in the past and is still undefined, Hemani's lawyers argue.
While the Bureau of Alcohol, Tobacco, Firearms and Explosives long interpreted the law to be triggered by a single drug-possession conviction or failed drug test within the past year, it now wants the test to be a "pattern of ongoing use."
That issue makes it hard to predict how consequential the case could be for further refining when gun regulations can pass constitutional muster, said Winkler, author of "Gunfight: The Battle over the Right to Bear Arms in America."
"I don't know if the court will find the vagueness off-ramp attractive," Winkler said. "It's possible that the court could rule on vagueness and thus not have any impact on the Second Amendment doctrine whatsoever."
This article originally appeared on USA TODAY:Can you have a gun if you smoke a lot of pot? Supreme Court to decide
