On June 18, in United States v. Hemani, the Supreme Court unanimously held that the prohibition under 18 U.S.C. § 922(g)(3) of firearm possession by a person who is "an unlawful user of" a controlled substance violates the Second Amendment as applied to one who used marijuana "about every other day." Justice Gorsuch delivered the opinion, joined by Chief Justice Roberts and Justices Thomas, Sotomayor, Kavanaugh, Barrett, and Jackson. Justice Alito concurred in the judgment, joined by Justice Kagan.
Under Bruen, the provision burdens conduct presumptively protected by the Second Amendment because it bans a class of people from possessing (i.e., "keeping" or "bearing") any firearm. The burden thus shifts to the government to justify the ban based on longstanding, well-representative historical analogues, but the habitual drunkard laws on which the DOJ relied here "targeted different kinds of people, for different purposes, and operated in different ways" than does 922(g)(3).
The Court found it necessary to distinguish, in footnote 6, certain other provisions of § 922(g), including felon ban in (g)(1) and the categories in (g)(4) concerning any person "adjudicated as a mental defective" or "committed to a mental institution." Unlike subsection (g)(3), they "involve some manner of pre-deprivation process before an individual's Second Amendment rights are lost," and (repeating Heller) "nothing in our opinion should be taken to cast doubt" on them. (Other than the alien provision, the other § 922(g) provisions also entail pre-deprivation process.) The Court's reference to "pre-deprivation" actually speaks to, among other things, so-called red flag laws.
