The United States Supreme Court recently unanimously agreed in the dismissal of a  federal government indictment filed against Ali Hemani for a violation of 18 U.S.C. 922(g)(3) [being in possession of a firearm while being a user of controlled substances]. The law, as  applied to the defendant, violated Hemani’s Second Amendment right to bear arms. However,  the decision is quite narrow.  

The Big Court laid out the facts: “Mr. Hemani is a dual citizen of the United States and  Pakistan who was born in Texas and has spent most of his life there. In recent years, he has lived  in the Dallas area with his parents and worked a stable job. But, suspecting Mr. Hemani and his  family members of terrorism-related activities, the government conducted a search of the family  home in 2022. Throughout the process, Mr. Hemani proved cooperative. He surrendered a gun  he kept in the house and pointed agents to some marijuana on the property.” Hemani told agents  that he used marijuana “about every other day” and when some cocaine was also found he  admitted that it was his but that he had not used any recently. Following the terrorism  investigation, the government only charged Hemani with one count of “knowingly possessing a  gun in his home while being an ‘unlawful user’ of a controlled substance.” Hemani faced 15  years in prison and “disarmament for life.” 

The federal statute reads, “It shall be unlawful for any person . . . who is an unlawful user  of or addicted to any controlled substance . . . to . . . possess . . . any firearm or ammunition . . .” 

After the trial court dismissed the indictment, the government appealed. The Fifth  Circuit Court of Appeals upheld the dismissal. The government appealed again. 

In their opinion (and in multiple concurrences), the justices discussed at length: the use of  marijuana and today’s changing regulatory schemes, that the federal law at issue did not have a  historical regulatory tradition, and that the government was unable to make a distinction in  violence between sometime use, regular use, addiction, or with users in actual possession of a  firearm at the time of the drug use. 

Note that the Big Court held only that the government was wrong when it applied the  federal law to Ali Hemani, meaning that the Court did not strike down §922(g)(3) itself. It  reminded the reader that the Second Amendment, like all constitutional rights, still has limits.  

The Court ended its opinion stating: “[w]e do not address efforts to ban addicts, or those  presently intoxicated, from possessing a firearm. We do not address other prophylactic laws  Congress might adopt after determining that users of a particular drug pose a special risk of  misusing firearms. We do not address [disarming felons, drug felons, or individualized proof  that the use of marijuana or other drug renders the defendant a danger to himself or others, or  proof that a certain drug always renders its users dangerous because of its potency or for some  other reason].”

So, does the decision affect Kansas law? Yes, probably, a little. K.S.A. 21-6301 reads,  “(a) Criminal use of weapons is knowingly: . . . (10) possessing any firearm by a person who is  both addicted to and an unlawful user of a controlled substance;”).  

But, notice that Kansas already requires more than the federal law: “possessing a firearm  by a person who is BOTH addicted to AND an unlawful user of . . .” So, in the future don’t look  for a county or district attorney to charge a Kansas case with facts similar to Ali Hemani’s, even  if our law is a little different. That said, like the federal law, K.S.A. 21-6301(a)(10) remains  available for the right situation.