Can It Be a Felony to Possess a Gun if You Smoke Weed?

On March 2, the Supreme Court will hear arguments in United States v. Hemani, a case that asks: Is it constitutional for the government to charge someone as a felon because they used marijuana and had a gun locked in a safe? For the ACLU, which is co-counsel in this case, the answer is a clear no.

The government charged Ali Hemani under 18 U.S.C. § 922(g)(3), which makes it a felony for “unlawful users” of controlled substances or those “addicted to” a controlled substance to possess a firearm. The government argues that Hemani is an “unlawful user” of marijuana, a drug nearly half of all Americans say they have tried at some point in their lives and that is now legal in some form – either for recreational or medical use – in nearly every state in the country.

The problems with this prosecution are many.

Is it constitutional for the government to charge someone as a felon because they used marijuana and had a gun locked in a safe?

First, the law is impermissibly vague. What is an “unlawful user”? The government says it’s a “habitual user.” But the word “habitual” never appears in the statute, and it is unclear what either of these terms even means. Do they mean someone who smoked marijuana last weekend? Six months ago? Consider a medical marijuana patient with a gun locked in a safe? Or a veteran who uses marijuana to manage chronic pain? Someone who smokes four times a month? Or does it have to be two times a week or five days a week? Vague statutes like 922(g)(3) invite arbitrary and discriminatory enforcement.

Second, under the government’s theory, they don’t have to prove that a person carried a gun at the same time they used marijuana, let alone that they used a gun recklessly in any way. Take, for example, someone who keeps a gun safely secured at home and consumes marijuana a few days a week. According to the government, those facts alone mean that a person could be convicted of a felony and potentially sentenced to prison. Those are not valid grounds to lock someone up.

Third, the government hasn’t met its burden under the Second Amendment to justify this prosecution. The court has explained that it evaluates the constitutionality of laws that regulate gun rights by looking at the country’s “history and tradition” of firearm regulations. Here, history provides no support for the government categorically disarming --and prosecuting-- people based on mere use of marijuana.

Fourth, laws that lack clear boundaries do more than create confusion – they create conditions for unequal treatment. When criminal statutes are vague or open-ended, enforcement decisions are left to discretion. History shows how such discretion operates: Communities of color are more likely to bear the weight of prosecution. As we say in the brief, nobody disputes drugs and guns can be a dangerous combination. But even the most serious societal problems must be addressed by laws that provide fair notice of what they prohibit—especially when they criminalize the exercise of fundamental rights.

Clarity in criminal laws is all the more important when the stakes are so high. Beyond facing a prison sentence, punishment under Section 922(g)(3) means an individual will have a felony conviction that can create lifelong barriers to employment, housing, education, and full democratic participation, consequences that ripple outward to entire families and communities.

We cannot continue to lock people up based on unfounded assumptions – particularly of “dangerousness” – or without fundamental notions of fairness. That’s why we’re in court arguing that the prosecution of Mr. Hemani is unfair and unconstitutional.

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