Department of Justice Intentionally Hand-Picked the Worst Facts for Gun Owners

The Supreme Court recently granted certiorari in United States v. Hemani, a Second Amendment case that will decide the constitutionality of prohibiting a habitual user of marijuana from possessing firearms under federal law.  Specifically, this case challenges 18 U.S.C. § 922(g)(3), which makes it “unlawful” for anyone “who is an unlawful user of or addicted to any controlled substance” to receive or possess firearms.  This prohibition applies even if the “unlawful user” uses a controlled substance in accordance with state law, and even if a “user” is not intoxicated at the time they possess a firearm.

But rather than being a cause for celebration that the Supreme Court will issue a rare Second Amendment opinion, Hemani poses a serious risk of undermining constitutional rights.  We have all heard that “bad facts make bad law.”  Apparently to make the worst law possible, the self-proclaimed “most pro-2A Department of Justice” has hand-picked a reported terrorist to be the unsympathetic defendant in this next Second Amendment Supreme Court case.  In fact, the DOJ intentionally included the following unnecessary and biased description of the case in its petition to the Supreme Court:

“Respondent Ali Danial Hemani is a dual citizen of the United States and Pakistan whose actions have drawn the attention of the Federal Bureau of Investigation (FBI). In 2019, a search of his phone at a border crossing revealed communications suggesting that he was poised to commit fraud at the direction of suspected affiliates of the Iranian Revolutionary Guard Corps, a designated foreign terrorist organization.

In 2020, respondent and his parents traveled to Iran to participate in a celebration of the life of Qasem Soleimani, an Iranian general and terrorist who had been killed by an American drone strike the month before. Respondent’s mother was captured on video telling an Iranian news agency that she prayed that her two sons, including respondent, would become martyrs like Soleimani.

Respondent also maintains weekly contact with his brother, who attends an Iranian university that the U.S. government has designated as having ties to terrorism. And respondent has told law-enforcement officials that, if he knew about an imminent terrorist attack by “a Shia brother” that would kill innocent people, he would not report it to the authorities.”

Of course, none of this has anything to do with Hemani’s alleged drug use.  And this is not the first time the DOJ has sought to undermine the Second Amendment’s rigorous textual and historical legal test by appealing a highly unsympathetic case.  Rather, this is exactly how the Biden Administration goaded the Supreme Court into an anti-gun ruling that watered down the Court’s Second Amendment test in United States v. Rahimi.  Only this time, it is a Republican, nominally “pro-gun” administration.

The Federal Gun Ban on Marijuana Users Is Unconstitutionally Broad

Not only is the Trump DOJ guilty of anti-gun legal strategy, but also it is choosing to defend one of the least defensible gun control laws imaginable.  Many courts already have found 18 U.S.C. § 922(g)(3) to violate the Second Amendment, after applying N.Y. State Rifle & Pistol Ass’n v. Bruen’s textual and historical analysis.  For example, in one recent case, the U.S. Court of Appeals for the Fifth Circuit explained that “[t]he history and tradition before us support, at most, a ban on carrying firearms while an individual is presently under the influence. … § 922(g)(3) imposes a far greater burden on … Second Amendment rights.”[i]

The Department of Justice had no business petitioning the Supreme Court to hear this case, especially when there are several other marijuana cases pending with far more sympathetic defendants.  The Trump Administration should have declined to disturb this pro-gun ruling, and GOA hopes that the Supreme Court will see through DOJ’s transparent effort to influence its decision-making process.

[i] United States v. Connelly, 117 F.4th 269, 282 (5th Cir. 2024).  NOTE: Even the most ardent supporters of gun control have failed to find any relevant “historical analogues” to prohibit the possession of weapons by individuals based merely on past consumption of alcohol or illegal drugs.  In, fact, opium and laudanum were widely used in the Founding era, marijuana was used in many medicinal products during the late 1800s and early 1900s, and pharmaceuticals with cocaine as an ingredient were available in the United States into the 20th Century.  What is more, the Founding generation routinely mixed guns and alcohol at militia musters and other public gatherings without problem.  Yet the Founders never disarmed any of these people unless they were actively under the influence.

[1] United States v. Connelly, 117 F.4th 269, 282 (5th Cir. 2024).  NOTE: Even the most ardent supporters of gun control have failed to find any relevant “historical analogues” to prohibit the possession of weapons by individuals based merely on past consumption of alcohol or illegal drugs.  In, fact, opium and laudanum were widely used in the Founding era, marijuana was used in many medicinal products during the late 1800s and early 1900s, and pharmaceuticals with cocaine as an ingredient were available in the United States into the 20th Century.  What is more, the Founding generation routinely mixed guns and alcohol at militia musters and other public gatherings without problem.  Yet the Founders never disarmed any of these people unless they were actively under the influence.