The ACLU, Long Leery of the Second Amendment, Joins the NRA in Urging SCOTUS To Uphold Pot Users’ Gun Rights

"We see this as an important civil liberties issue," says an ACLU lawyer.

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The American Civil Liberties Union (ACLU), despite its name, historically has not been keen on defending the constitutional right to keep and bear arms. After the Supreme Court affirmed that right in the landmark 2008 case District of Columbia v. Heller, the ACLU continued to maintain that "the Second Amendment protects a collective right rather than an individual right," saying it "disagrees with the Supreme Court's conclusion about the nature of the right protected by the Second Amendment." Yet in United States v. Hemani, a case the Supreme Court will hear on Monday, the ACLU is unambiguously defending the right it used to say does not exist.

The ACLU's position puts it on the same side as the National Rifle Association (NRA). Although this is not the first time that has happened, it is the first time it has happened in a Second Amendment case. The confluence of interests illustrates the potential for cross-ideological alliances at the intersection of gun control and the war on drugs—a subject I explore in my book Beyond Control.

The Supreme Court case involves Ali Hemani, a Texas man who was charged with illegal gun possession in 2023 after an FBI search of his home discovered a Glock 19 pistol, about two ounces of marijuana, and less than a gram of cocaine. Hemani admitted that the gun was his and that he smoked marijuana a few times a week, which would have been enough to convict him under 18 USC 922(g)(3).

That law, the original version of which Congress enacted in 1968, makes it a felony, punishable by up to 15 years in prison, for an "unlawful user" of "any controlled substance" to receive or possess a firearm. But the case against Hemani was dismissed based on United States v. Connelly, a 2024 decision in which the U.S. Court of Appeals for the 5th Circuit ruled that the Second Amendment bars such prosecutions when they are based on nothing beyond the elements specified by the statute.

The Trump administration, despite its avowed commitment to "protecting Second Amendment rights," is asking the Supreme Court to reinstate the Section 922(g)(3) charge against Hemani and reject the 5th Circuit's conclusion that prosecutions under that law are unconstitutional without additional evidence that the defendant poses a danger to public safety. The government's stance has drawn opposition from an ideologically diverse set of critics, including the National Organization for the Reform of Marijuana Laws, the Drug Policy Alliance, and the National Association of Criminal Defense Lawyers as well as leading Second Amendment groups such as the NRA, Gun Owners of America, the Second Amendment Foundation, and the Firearms Policy Coalition.

The unlikely coalition siding with Hemani also includes the ACLU, which did not participate in his July 21 brief opposing Supreme Court review of the case but joined the brief that his lawyers filed after the justices granted the Trump administration's petition. The latter brief argues that Section 922(g)(3) is unconstitutionally vague because it is not at all clear what "unlawful user" means. But the brief also argues, consistent with the 5th Circuit's reasoning, that "the Second Amendment forecloses the government's attempt" to prosecute Hemani under that law.

The ACLU is embracing both arguments, which is pretty striking given the organization's previous position that the Second Amendment does not guarantee an individual right to arms. The ACLU's national board adopted a revised position on gun rights in 2015, acknowledging that Americans at the Founding "took the individual possession of firearms for granted." It noted that "many of the legislators who wrote the Second Amendment owned guns" and "undoubtedly assumed that their ownership was part of their rights to property and self-defense." Still, it said, "the right to own and use guns was not considered absolute."

Accordingly, the board said, "the ACLU will not oppose governmental regulation of firearms as long as such regulation is reasonably related to a legitimate governmental interest, such as protection of the public health, safety, or welfare. Deference should be given to legislative judgments limiting gun ownership or use so that state and local governments are allowed an opportunity to experiment with solutions to the complex problems involving guns."

That deference apparently reached its limits with Section 922(g)(3). "This is the first time that we have entered a case affirmatively on behalf of an individual making a Second Amendment claim," says Brandon Buskey, director of the ACLU's Criminal Law Reform Project and one of the attorneys listed in Hemani's brief. "Now that the Supreme Court has recognized this as a fundamental right, we see this as an important civil liberties issue."

Although Democratic politicians who usually support criminal justice reform tend to have second thoughts when the issue involves guns, it is not hard to see how Hemani's case intersects with the ACLU's traditional concerns. "The government is trying to imprison someone for up to 15 years based on a statute that only requires that someone be an 'unlawful user' of a drug like marijuana and be in possession of a weapon, even if that weapon is safely secured," Buskey notes. "That not only invites arbitrary and discriminatory enforcement because of how vague the statute is," he says. It is "also inconsistent with how other [constitutional] rights are treated."

The vagueness argument is based on the principle that the Fifth Amendment's guarantee of due process requires "fair notice" of what a law requires or prohibits. Section 922(g)(3) "doesn't give proper notice of what kind of behavior it actually prohibits, which is a core due process requirement," Buskey says.

The statute does not define "unlawful user," and for decades federal courts have tried to figure out what it means. According to the Justice Department's gloss, a gun buyer or owner violates Section 922(g)(3) if he has used an illegal drug "recently enough to indicate that [he] is actively engaged in such conduct." Federal courts have said "a temporal nexus is required between the drug use and the firearm possession," the Justice Department says. "Courts now examine the 'pattern and recency' of the defendant's drug use in determining if there is a temporal nexus between the possession of the firearm and drug use." But they "do not require contemporaneous use."

The Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) recently proposed a revised definition of "unlawful user" aimed at excluding people who have stopped "regularly" and "unlawfully" using a controlled substance and people whose "unlawful use is isolated or sporadic or does not otherwise demonstrate a pattern of ongoing use." Under the new definition, for example, a single positive drug test in the previous year would not be enough, by itself, to trigger the loss of Second Amendment rights under Section 922(g)(3).

Adding to the confusion, the Trump administration in Hemani avers that Section 922(g)(3) applies only to "habitual drug users," which is not what the law says. That reading also seems inconsistent with the provision's treatment of individuals who are "addicted to any controlled substance" as a distinct category of people who are not allowed to possess firearms. The law does not define "addicted." But under the Controlled Substances Act, the term "addict" includes "any individual who habitually uses any narcotic drug so as to endanger the public morals, health, safety, or welfare."

Depending on what "unlawful user" means, potential defendants could include anyone who owns a gun and occasionally consumes marijuana, even if he does so in compliance with state law. Judging from survey data on drug use and gun ownership, that category might encompass something like 20 million Americans.

In addition to a violation of Section 922(g)(3), gun-owning cannabis consumers can be charged with three related federal felonies. All told, the combined maximum sentences add up to nearly half a century. And even if a defendant does not face multiple charges, a single conviction is enough to permanently strip him of his Second Amendment rights under a different provision of the same law, which applies to anyone who has been convicted of a crime punishable by more than a year of incarceration. So the stakes in figuring out exactly who is covered by Section 922(g)(3) are pretty high.

Because the law does not answer that question, it is "up to the government's choice as to what counts as an 'unlawful user,'" Buskey notes. "That's really a matter for Congress to decide, and not for administrative agencies to change, literally in the course of litigation on this very question." While the revised ATF definition is an improvement, he says, it "doesn't give much certainty to the millions of marijuana users in this country as to where the government might go next if it decides that the rule is not to its liking."

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