SCOTUS Adds Second Amendment Case to Docket

The U.S. Supreme Court will consider another important Second Amendment case this term. The latest case added to the docket, United States v. Hemani, challenges the constitutionality of a federal law that bars gun possession by anyone who is “an unlawful user of or addicted to any controlled substance.”

The justices have already agreed to consider Wolford v. Lopez, which challenges a Hawaii law that makes it a crime for someone who has a concealed carry permit to carry a handgun on private property without the property owner’s affirmative permission.

Wolford v. Lopez

In New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1, 33 (2022), the Supreme Court held that “the Second Amendment guarantees a general right to public carry” of arms, meaning ordinary, law-abiding citizens may “‘bear’ arms in public for self-defense.” The Court further held that when a firearm regulation is challenged under the Second Amendment, the Government must show that the restriction “is consistent with the Nation’s historical tradition of firearm regulation.”

Since Bruen was decided, the lower courts have struggled to apply the new “text, history and tradition” standard. In United States v. Rahimi, 602 U.S. ____ (2024), in which the Supreme Court upheld a federal law that prohibits individuals subject to a domestic violence restraining order from possessing a gun, the Supreme Court observed that some courts have been too rigid in applying Bruen. 

The Court clarified that the proper question for lower courts to ask is “whether the new law is ‘relevantly similar’ to laws that our tradition is understood to permit, applying faithfully the balance struck by the founding generation to modern circumstances.” As the Chief Justice explained in the following example, “if laws at the founding regulated firearm use to address particular problems, that will be a strong indicator that contemporary laws imposing similar restrictions for similar reasons fall within a permissible category of regulations.”

The latest suit, Wolford v. Lopez, involves a Hawaii law that makes it a crime for a concealed carry permit holder to carry a handgun on private property unless he has been “given express authorization to carry a firearm on the property by the owner, lessee, operator, or manager of the property.”

The Ninth Circuit Court of Appeals upheld the law, concluding that a national tradition likely exists of prohibiting the carrying of firearms on private property without the owner’s oral or written consent. The challengers appealed to the Supreme Court, arguing that “[i]n holding the Second Amendment does not apply to private property open to the public, the Ninth Circuit’s decision renders illusory the right to carry in public.”

The justices granted certiorari and have agreed to consider the following question: “Whether the U.S. Court of Appeals for the 9th Circuit erred in holding that Hawaii may presumptively prohibit the carry of handguns by licensed concealed carry permit holders on private property open to the public unless the property owner affirmatively gives express permission to the handgun carrier.”

United States v. Hemani

In United States v. Hemani, a grand jury charged Ali Danial Hemani with violating 18 U.S.C. 922(g)(3), which makes it unlawful for any person who “is an unlawful user of or addicted to any controlled substance” to possess a firearm in or affecting commerce. The courts of appeals have uniformly concluded that the word “user” means someone who engages in the habitual or regular use of a controlled substance, which means a drug that is listed in one of the schedules of the Controlled Substances Act. The prosecution in this case was based on habitual use of marijuana.

The Fifth Circuit held that the law is unconstitutional as applied to Hemani because he was not under the influence of a controlled substance while possessing a firearm. Other courts of appeal have reached different outcomes when faced with similar cases. The Seventh Circuit upheld Section 922(g)(3); the Eighth Circuit held it violates the Second Amendment unless the government can make a case-by-case showing justifying the drug user’s disarmament; and the Fifth Circuit held that it generally violates the Second Amendment unless the drug user was intoxicated while possessing the firearm.

Notably, the Trump Administration has urged the Court to uphold the federal gun regulation in this context, arguing 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.” The justices granted certiorari and have agreed to decide whether 18 U.S.C. § 922(g)(3) violates the Second Amendment as applied to respondent.

Oral arguments have not yet been scheduled in either case. Nonetheless, a decision is expected before the term ends in June/July 2026. Please check back for updates.