Tsunami vs. Trickle: The Government’s Delicate Defense of the Drug-User Gun Ban in Hemani

Solicitor General D. John Sauer filed the government’s merits brief in United States v. Hemani on December 12, 2025, presenting a prosecution that reads less like a conventional defense of federal criminal law and more like a love letter to the Second Amendment with a footnote asking the Court to please uphold this one small statute. The brief opens by declaring that the right to keep and bear arms is “a fundamental right that is essential to ordered liberty” and that courts should exercise “the utmost vigilance” in guarding it from infringement. Only after that rhetorical genuflection does the government argue that § 922(g)(3) falls within the “narrow circumstances” in which Congress may justifiably burden the right.

The tension in the government’s position becomes stark when one considers the statute’s reach. Under longstanding ATF and FBI guidance, a single use of a controlled substance within the past year—demonstrated by a positive drug test or a drug-offense conviction—is enough to render a person an “unlawful user.” With nearly one in four Americans ages twelve and older having used a controlled substance in the past year, the practical scope of § 922(g)(3) likely sweeps in an estimated 30 million people who are technically barred from possessing a firearm under federal law. Yet only a tiny fraction—a trickle—are ever prosecuted. The brief sidesteps this enormous gap between statutory reach and actual enforcement by recharacterizing the statute as applying “only to habitual drug users” and imposing “only temporary disarmament while that habitual use persists.” That gloss will come as news to the FBI, whose background-check guidance continues to treat single recent use as disqualifying.

On the merits, the government’s historical argument traces a line from founding-era laws restricting the rights of habitual drunkards to the modern prohibition on drug users possessing firearms. The brief catalogs dozens of nineteenth-century statutes disarming, confining, or imposing guardianship over drunkards and argues that § 922(g)(3) is a “modest, modern analogue” of those harsher measures. It also emphasizes the danger that habitual drug users with firearms pose to law enforcement, noting the risk of “armed, hostile encounters with police officers while impaired.” The brief further points to § 925(c)—a relief provision allowing disqualified persons to petition the Attorney General for restoration of firearms rights—as a safety valve, though it concedes that the program was “effectively disabled” from 1992 until March 2025.

The case arrives at the Court amid a widening circuit split. The Seventh Circuit has upheld § 922(g)(3), while the Fifth and Eighth Circuits have struck it down on different grounds. The Fifth Circuit, relying on its earlier decision in United States v. Connelly, held that history and tradition do not support disarming a sober person based solely on past drug use. Respondent Zachary Lee Newland of Newland Legal, PLLC, joined by Erin E. Murphy of Clement & Murphy, PLLC, filed a merits brief on January 23, 2026, defending the Fifth Circuit’s approach. The volume of amicus activity has been extraordinary—23 amicus briefs in all—with gun-rights organizations like the NRA, Firearms Policy Coalition, and the ACLU lining up alongside Hemani, while Everytown for Gun Safety, Brady Center, and a coalition of states support the government. The Court will also be weighing the companion Second Amendment case Wolford v. Lopez, No. 24-1046, which tests the limits of the Bruen framework in the concealed-carry context.

Oral argument is scheduled for March 2, 2026. Whether the Court accepts the government’s invitation to treat the statute as a modest, historically grounded measure—or instead confronts the tsunami of Americans technically within its reach—will have profound consequences for Second Amendment doctrine going forward.