Justice Neil Gorsuch turned a Supreme Court oral argument into a history lesson this week, rattling off the drinking habits of America's Founding Fathers to expose what he sees as a glaring problem with the federal government's attempt to strip gun rights from marijuana users.
The case is U.S. v. Hemani, and it centers on a deceptively simple question: Can the government permanently disarm someone for using a substance that is legal in most states? The Department of Justice says yes. Gorsuch, it appears, has some follow-up questions.
According to Fox News, Ali Hemani, a Texas man, was charged after the FBI discovered he possessed a handgun and smoked marijuana every other day. Federal law under Section 922(g)(3) prohibits "habitual drug users" from owning firearms. The DOJ argued that Hemani illegally owned the gun while a habitual user of marijuana and that he was rightly charged for it.
To defend the law's constitutionality, the DOJ was required to point to a strong historical comparison rooted in the nation's tradition of firearms regulation. They chose founding-era laws restricting habitual drunkards from possessing weapons.
That's where Gorsuch pounced.
"The American Temperance Society, back in the day, said eight shots of whiskey a day only made you an occasional drunkard."
A habitual drunkard, Gorsuch noted, had to double that. Then he turned to the men who built the republic:
"John Adams took a tankard of hard cider with his breakfast every day. James Madison reportedly drank a pint of whiskey every day. Thomas Jefferson said he wasn't much of a user of alcohol. He only had three or four glasses of wine a night."
Then the question that landed like a gavel:
"Are they habitual drunkards who would be properly disarmed for life under your theory?"
The point was surgical. If the founders themselves had not qualified as "habitual drunkards" under the very standards of their own era, then the DOJ's historical analogy collapses. You cannot claim a modern law stands "solidly within our Nation's history and tradition" when the tradition it invokes wouldn't have touched the men who wrote the Constitution.
Gorsuch didn't stop at the historical argument. He pressed the DOJ lawyer on the practical absurdity of the law's application to someone like Hemani.
"We don't even know the quantity of how much he uses every other day. What if he took one gummy bear with a medical prescription in Colorado?"
And then, even more pointedly:
"Let's say he had one to help him sleep every other day. Disarm him for life?"
The DOJ attempted to soften the blow in court papers, calling the restriction "limited, inherently temporary" and arguing it could be removed "by curtailing drug use." But that framing only underscores the problem. The government is acknowledging that the restriction is functionally a lifetime ban on a constitutional right, contingent on behavior the government gets to define with no clear threshold.
What counts as "habitual"? The DOJ never answered that. Not in court papers. Not at oral argument. The law doesn't define the term, and the government seems content to leave it vague enough to prosecute at its discretion.
Hemani's attorney framed the DOJ's entire historical defense as fundamentally flawed:
"The only historical tradition it has offered is one of imposing restrictions on habitual drunkards."
And then the sharper cut:
"That entire line of argument rests on a category mistake because the laws to which the government points applied only to habitual drunkards, not to habitual drinkers."
This distinction matters enormously. The founding-era laws didn't target everyone who drank. They targeted a narrow class of people whose consumption rendered them demonstrably dangerous. The modern law, by contrast, sweeps up anyone who uses a controlled substance with any regularity, regardless of impairment, regardless of quantity, regardless of whether the substance is legal in their state.
The DOJ argued in court papers that the law is justified because habitual illegal drug users with firearms "present unique dangers to society," especially because "they pose a grave risk of armed, hostile encounters with police officers while impaired." That reasoning assumes every habitual user is a ticking time bomb. It treats a man who takes a cannabis gummy before bed the same as someone high on methamphetamine waving a pistol at a traffic stop.
The case has scrambled the usual battle lines. The National Rifle Association and Gun Owners of America are supporting Hemani. Several Democratic states are backing the DOJ. Second Amendment advocates are watching closely.
This is also the same statute under which Hunter Biden, President Joe Biden's son, was convicted for possessing a gun in 2018 while addicted to crack cocaine. That case raised different facts but the same legal question: how far can 922(g)(3) reach before it breaks the Second Amendment?
For conservatives, the principle here isn't about marijuana. It's about whether the federal government can strip a constitutional right based on a vague behavioral category with no defined threshold, no requirement of actual impairment, and no meaningful due process. That power, once granted, doesn't stay confined to drug users. It becomes a template.
The high court is expected to issue a decision by the summer. The outcome will shape how courts evaluate firearms restrictions under the historical-tradition test established in recent Second Amendment jurisprudence.
If the DOJ's analogy holds, the government will have established that founding-era drunk laws can justify modern restrictions on anyone who habitually uses any controlled substance. If it doesn't, Congress will need to write laws that actually define terms, draw reasonable lines, and respect the constitutional rights they're restricting.
John Adams drank hard cider every morning and helped build a nation. Under the DOJ's theory, he might not have been trusted with a musket.