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The Supreme Court affirmed a marijuana user’s right to bear arms on Thursday, holding that criminal charges against him for owning a gun while using cannabis violate the Second Amendment. The unanimous decision in rejected the federal government’s authority to disarm consumers of marijuana absent evidence that they regularly used the drug to the point of incapacity. In doing so, the justices frankly acknowledged the widespread legal and social acceptance of cannabis in America today—a remarkable turnabout for a court that has long treated all drug users as presumptively dangerous criminals.
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On this week’s episode of Amicus, co-hosts Dahlia Lithwick and Mark Joseph Stern discussed Hemani’s selective libertarian sympathies and how the unanimous opinion papered over the court’s ongoing disagreements about how to read and apply the Second Amendment. A preview of their conversation, below, has been edited and condensed for clarity. For the remainder of their discussion of Hemani, listen to this week’s Slate Plus bonus episode.
Dahlia Lithwick: In a lot of ways, Justice Neil Gorsuch’s majority opinion becomes an ode to legal marijuana. And maybe we shouldn’t be surprised: He lived in Colorado when that state legalized recreational cannabis in 2012. He went to bat for gummy aficionados during oral argument. The upshot of his opinion is basically that marijuana’s kind of chill and fun, and the founders would have liked it?
Mark Joseph Stern: Yes, which tracks with Gorsuch’s comments during oral argument. He clearly does not see marijuana as an especially dangerous or harmful drug, especially as compared to alcohol. One of the points he makes over and over again throughout this opinion is that the founders themselves were heavy drinkers. He writes that John Adams had “a tankard of hard cider” with his “daily breakfast,” while James Madison “consumed a pint of whiskey daily” and George Washington “often drank three glasses of madeira in the evening.” Thomas Jefferson enjoyed “3 or 4 glasses” of wine with dinner. And just a few days before the Framers signed the Constitution, they got absolutely smashed.
Gorsuch’s point is that these guys got drunk a lot. The people who ratified the Second Amendment, who created our system of government, frequently got trashed—and they probably didn’t think they could be lawfully disarmed because of it. And that’s the point of inquiry: In the late 18th century, alcohol was heavily used, but people who did so could still own guns. So surely people who use marijuana today have someSecond Amendment rights too.
It is amazing that on this polarized court, which can agree on nothing, we got a unanimous decision that day-drinking is a good thing. It is clearly the solution to all that divides us. Now, I don’t want to be too fast and loose. There is actual legal reasoning in this opinion, to the extent you can call any application of the extremely vaporous “legal reasoning.” But Gorsuch does say that “habitual drunkard” laws from the founding aren’t sufficiently analogous to the modern statute to pass muster. I think everyone was hoping that this case would help Bruen become more coherent or defensible. Is the test still a mess?
Yes, because Gorsuch does the move that’s so common under Bruen: He acknowledges that an old law looks kind of similar, then finds some reason to distinguish it. Here, he does a close reading of laws punishing “habitual drunkards” at the founding and says they applied only to people whose drinking “rendered them practically incapacitated and incapable of managing their affairs.” So it wasn’t just regular drinking that made you a criminal “habitual drunkard”; it was drinking enough to destroy your life and make you actively dangerous.
In this case, there was no evidence that Ali Hemani’s marijuana use ruined his mental capacity. And as Gorsuch points out—flaunting his knowledge of the legal market—the United States doesn’t even treat marijuana as a particularly dangerous drug anymore. He notes that weed is legal in most states in some form, and the federal government has already rescheduled medical cannabis, with recreational weed to follow soon. Sure, you can use too much of it. But did Hemani? The government didn’t say; as Gorsuch wrote, for all we know, he used only “a mild gummy as a sleep aid a few times a week.” So, at the end of the day, this guy seems trustworthy enough to bear arms. But that doesn’t clear up the doctrine whatsoever. If anything, it further shows how the Bruen test leaves room for judges to say that defendants with whom they sympathize have a right to bear arms, while defendants with whom they don’t sympathize do not.
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I do want to flag one aspect of this case that is very interesting to me as a longtime court watcher: It wasn’t even 20 years ago that SCOTUS ruled, in a famous case, that a high school student had no First Amendment right to hold up a sign that said “Bong Hits for Jesus” at a school event. I’m old enough to remember that during oral argument, the conservative justices were absolutely overwhelmed with Reefer Madness–style drug-warrior hostility toward marijuana. Even a reference on a jokey sign was too much marijuana to tolerate in our world. And now it seems the court, on a dime, is so OK with pot that it says users can bear arms. This is such a huge shift in a couple of decades, right?
It’s a huge shift. During oral argument in that case, Justice Antonin Scalia was aghast that anyone would think public school students have a right to advocate for legal marijuana. He also famously contorted his vision of the commerce clause to allow the federal government to prosecute people for having one homegrown cannabis plant at home for personal medical use. The dude hated drugs, as have a lot of other conservative justices.
I think this shift shows, first of all, how much culture really does permeate the Supreme Court. By 2026, the justices know that taking a gummy sometimes to sleep does not make you a dangerous person. Gorsuch points out that according to some studies, more Americans use weed than alcohol, which is probably a net benefit for public health. On top of that, Hemani indicates that the court is not always going to let the government use controlled-substance restrictions to infringe upon other civil liberties. We saw this in the “Bong Hits for Jesus” case, when the court basically said that because weed was illegal, the government could crush the First Amendment rights of students who endorse it. We still see this in so many cases involving the Fourth Amendment, when police use the alleged smell of marijuana as a pretext for an illegal search. And we saw this during Prohibition, when SCOTUS upheld many infringements on the Fourth Amendment and other civil liberties because the authorities were targeting alcohol.
To be clear, I don’t love this decision. Every validation of Bruen unfortunately takes us a little bit further down that Second Amendment road and makes it harder to reverse in the future. But if we accept that there is a constitutional right to bear arms, the ruling fundamentally makes sense and reflects a relatively reasonable understanding of marijuana and its users. It refuses to diminish civil liberties—or at least one favored civil liberty—out of judicial animosity toward drug use. On the whole, that’s a positive sign.
The justices may be on the same page about marijuana, but they are really not on the same page about the Second Amendment, despite the fact that this was a unanimous decision. So before anyone assumes that the liberals have made their peace with the flaming dumpster fire that is Bruen, can you talk about Justice Ketanji Brown Jackson’s concurrence, in which she refuses to play along?
Jackson, joined in full by Justice Sonia Sotomayor, is still not on board with Bruen. She writes that “Bruen is unworkable” because “it imposes on judges the unfamiliar and difficult tasks of sifting through centuries-old evidence in order to answer contested historical questions” and “resolve contemporary problems.” The test is also “vulnerable to inconsistent and arbitrary application,” which we arguably see here: A majority of the court is sympathetic toward marijuana users, so Bruen magically gives them a right to bear arms. Would that be true of other drugs, like psilocybin? There was a lot of talk about psychedelics during oral argument, and some of the justices seemed to think that would take it too far.
So Jackson wants us to know that Bruen is still clearly broken. She argues that the court should return to something like heightened scrutiny, asking whether a gun law is “sufficiently tailored” to promote a “legitimate purpose.” Judges already do that in all kinds of cases, and they could do it here. Jackson is still fighting this fight; she won’t give in and pretend that Bruen is actually workable. She wants the court to do real law.
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