By C.D. Michel, Michel & Associates, P.C.
Second Amendment
Introduction
In our prior articles for California NORML, we discussed how federal gun laws intersect with California’s legalization of recreational and medical marijuana use. We explained that, even though California law allows marijuana use, federal law continued to treat marijuana as a controlled substance and barred “unlawful users” of controlled substances from possessing firearms or ammunition.
That analysis has now changed in a big way. On June 18, 2026, the United States Supreme Court decided United States v. Hemani (2026) a case directly addressing whether the federal government may prosecute a marijuana user for possessing a firearm under 18 United States Code section 922(g)(3). The Court held that the government’s prosecution of Mr. Hemani under section 922(g)(3)’s “unlawful user” provision was inconsistent with the Second Amendment.
The short answer now is this: marijuana use alone is no longer enough to automatically justify a federal felony prosecution for firearm possession. But the ruling is narrow, and marijuana users should still be cautious. Possessing or using firearms while impaired, making false statements on government forms, addiction, violence, threats, drug trafficking, or individualized proof of dangerousness can still create serious legal exposure.
The Federal Firearms Statute
Federal law, 18 United States Code section 922(g)(3), prohibits any person who is an “unlawful user of or addicted to any controlled substance” from possessing firearms or ammunition. The statute incorporates the Controlled Substances Act’s definition of “controlled substance.” Marijuana has historically been treated as federally controlled even when state law allows its use.
The Supreme Court in Hemani described section 922(g)(3) as a law that, under the government’s view, automatically banned a person from possessing a gun from the moment he became an unlawful user of any controlled substance until he stopped being one, regardless of the amount used, the drug involved, whether the use made him dangerous, why he kept a firearm, or how safely he did so.
Before Hemani, the safest practical advice was simple: if you currently use marijuana, you are exposed to criminal prosecution under federal law if you possess a firearm or ammunition. After Hemani, that categorical answer is no longer accurate.
The Process of Buying a Firearm
Anyone buying a firearm from or through a federally licensed firearms dealer must complete ATF Form 4473, the Firearms Transaction Record. The current version has a question that asks whether the buyer is an unlawful user of, or addicted to, marijuana or another controlled substance, and warns that marijuana use or possession remains unlawful under federal law regardless of state legalization for medicinal or recreational purposes.
That form is signed under penalty of perjury. False answers can create separate criminal liability even if the underlying possession issue becomes more defensible, or legal, after Hemani.
So, for people who use marijuana and want to buy a firearm, the Form 4473 issue remains one of the most practical and immediate risks.
The Supreme Court’s Decision in United States v. Hemani
Ali Hemani used marijuana a few times a week and kept a firearm in his home. Federal agents searched the family home in 2022, and Mr. Hemani cooperated. He surrendered a gun, pointed agents to marijuana on the property, and told law enforcement he used marijuana about every other day.
More than six months later, the government prosecuted him under section 922(g)(3), relying solely on his admitted marijuana use and his possession of a firearm in the home. The government did not allege that he was addicted to drugs, that he was intoxicated while possessing the gun, that his marijuana use made him dangerous, or that he had misused the firearm.
The Supreme Court rejected the government’s theory. The government argued that historical laws addressing “habitual drunkards” supported disarming regular marijuana users. The Court disagreed, explaining that those historical laws generally targeted people whose drinking rendered them practically incapacitated or unable to manage their affairs, not merely people who regularly used intoxicants.
The Court also emphasized the “how” problem. The historical laws the government relied on generally required some kind of process before a person lost liberty, such as a conviction, a probate proceeding, or a surety proceeding. Section 922(g)(3), as applied by the government, automatically disarmed a person the moment he became an unlawful user and did so without any pre-deprivation process.
The Court also found it hard to square the government’s categorical-danger theory with the federal government’s own approach to marijuana. The Court noted that DOJ had curtailed federal enforcement against marijuana users, that most states had legalized marijuana to some degree, and that the government had recently moved some marijuana products from Schedule I to Schedule III.
What Hemani Means for Marijuana Users Who Want to Possess Guns
Marijuana use alone can no longer automatically support a federal felony prosecution for firearm possession under section 922(g)(3), at least where the facts look like Hemani: ordinary marijuana use, a firearm kept for lawful purposes, no intoxicated gun handling, no violence, no threats, no addiction finding, and no individualized proof that the person’s marijuana use makes them dangerous.
But Hemani does not erase every risk, nor clear up the process to purchase. The Court made clear that it was deciding a narrow case. It did not address laws banning firearm possession by people who are addicted to drugs, presently intoxicated while possessing a firearm, convicted felons, or people whose drug use can be shown through individualized proof to make them dangerous.
That means a marijuana user who keeps a firearm safely stored at home for self-defense is in a stronger position after Hemani. A person who carries or handles firearms while impaired, combines marijuana with threats or violence, traffics drugs, or gives false answers on firearm paperwork is in a very different position.
Other Courts Are Already Applying Hemani
The impact of Hemani is already being felt in other marijuana-and-firearms cases. On June 29, 2026, the Supreme Court granted, vacated, and remanded the Third Circuit’s decision in United States v. Erik Harris (3d Cir. 2025) 144 F.4th 154, directing the lower court to reconsider the case in light of United States v. Hemani. Erik Matthew Harris, a frequent marijuana user, bought three pistols and answered “no” each time on the federal firearm form asking whether he was an unlawful user of marijuana. After he lost one of the guns following a night of drinking and marijuana use, police later recovered it from a convicted felon. Harris admitted he regularly used marijuana, and he was charged with both possessing firearms as an unlawful drug user and lying on the 4473 purchase forms. The Third Circuit had held that section 922(g)(3) could constitutionally restrict drug users who present a special danger of misusing firearms, but it remanded for additional fact-finding because the record did not establish whether Harris’s marijuana use made the statute constitutional as applied to him.
The Supreme Court also denied the government’s petition for review in United States v. Kevin LaMarcus Mitchell (5th Cir. 2025) ___ F.4th ___, leaving in place a Fifth Circuit ruling in Mitchell’s favor. In Mitchell, Kevin LaMarcus Mitchell had a prior felony conviction under section 922(g)(3) after officers found a loaded pistol and a small bag of marijuana during a 2018 arrest; Mitchell admitted to being a drug user and later admitted the firearm was his. Years later, the government charged him under section 922(g)(1), the felon-in-possession statute, based on that prior section 922(g)(3) conviction. The Fifth Circuit held that permanently disarming Mitchell based on that prior marijuana-related firearm conviction went further than the Nation’s historical tradition allowed, especially because the record did not show that he was actively under the influence of marijuana while possessing the firearm.
These developments still do not answer every question about purchasing or possessing a firearm for marijuana users. A denial of certiorari does not create nationwide Supreme Court precedent, and a remand simply tells the lower court to reconsider the case under the new rule. But the message from SCOTUS is that after Hemani, courts should be skeptical of laws or prosecutions that treat marijuana use by itself as proof that a person is too dangerous to possess a firearm.
So, Can a Marijuana User Buy a Gun?
The practical answer is: maybe, but do not treat Hemani as a green light to walk into a gun store and answer the Form 4473 question without risk.
After Hemani, the federal government should no longer be able to deny or prosecute a person based solely on marijuana use, without more. But buying a gun from a licensed dealer still requires completing ATF Form 4473, and that form still asks about marijuana and controlled-substance use. Until ATF finalizes its revised Form 4473 and issues guidance applying Hemani, the purchase process remains legally uncertain.
So the practical answer depends on the facts:
- If you are an occasional cannabis user, are not impaired when handling firearms, have no history of violence or threats, are not addicted, and keep firearms safely for lawful purposes, Hemani gives you a strong argument that marijuana use alone cannot constitutionally disqualify you.
- If you are currently impaired, regularly handle firearms while using cannabis, have addiction issues, have made threats, have violence-related incidents, or have other aggravating facts, Hemani may not protect you.
- The Form 4473 issue remains the biggest practical problem. A false answer on that form can create a separate federal criminal issue, regardless of whether the government could constitutionally prosecute simple possession after Hemani.
For now, the most accurate practical guidance is this: a cannabis smoker is in a much better legal position after Hemani, but the safest course is to wait for ATF’s revised Form 4473 and post-Hemani guidance before assuming that marijuana users can purchase firearms without risk.
Form 4473 Is Being Revised by the ATF
ATF has proposed comprehensive revisions to Form 4473, the Firearms Transaction Record used by federally licensed dealers in connection with NICS background checks. ATF has also issued an interim final rule revising the definition of “unlawful user of or addicted to any controlled substance.” That rule adds language clarifying that isolated or sporadic use is not enough, and that a single incident is not sufficient for a denial under section 922(g)(3).
The final version of Form 4473 will be very important. The specific wording ATF chooses after Hemani, particularly how it asks about marijuana use and how it distinguishes recreational use, medical use, addiction, current use, and dangerousness, will likely reveal how the federal government intends to apply section 922(g)(3) going forward.
Until ATF finalizes the form and issues post-Hemani guidance, buyers should assume that Form 4473 remains a serious federal document signed under penalty of perjury. Whatever Hemani means for possession prosecutions, false answers on Form 4473 still create a separate prosecution risk.
What Marijuana Users Should Do Now
For now, marijuana users who own or want to own firearms should keep these points in mind:
- Do not possess or handle firearms while impaired. Hemani did not protect intoxicated firearm possession.
- Do not make false statements on Form 4473 or any firearm application. The form itself can become the evidence in a false-statement case.
- A medical marijuana card does not solve anything. The law is changing, but ATF’s final form and guidance will matter.
- Do not assume all marijuana users are now automatically clear. Hemani rejected categorical disarmament based on marijuana use alone, but it left room for prosecutions involving addiction, dangerousness, impairment, or other aggravating facts.
- Watch for ATF updates. The final Form 4473 language and any agency guidance will likely show how aggressively the federal government intends to apply section 922(g)(3) after Hemani.
Know Your Rights
If contacted by law enforcement about firearms, marijuana, or both:
- Remain silent.
- Do not consent to a search.
- Do not explain your marijuana use, firearm ownership, storage practices, or purchase history.
- Give your name and basic identifying information if required.
- Say clearly: “I want to remain silent and speak with my lawyer.”
- Do not discuss the matter with police, friends, family, cellmates, or anyone other than your lawyer.
- Remember that jail calls and police car conversations are recorded and can be used against you.
Conclusion
Hemani is a major Second Amendment decision for marijuana users. The federal government can no longer rely on marijuana use alone to automatically strip a person of the right to possess a firearm. The Supreme Court’s follow-on orders in Harris and Mitchell confirm that Hemani is already changing how courts handle marijuana-and-firearms cases. But this area of law is still in transition. The statute is still on the books, ATF is revising Form 4473, and the next wave of disputes will likely focus on what counts as addiction, impairment, dangerousness, recreational use, medical use, and truthful disclosure on firearm purchase forms. Marijuana use alone is no longer enough to be prosecuted for possessing a firearm after Hemani, but impaired firearm possession, false statements, addiction, dangerousness, or other aggravating facts still create serious risk of federal prosecution.
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