The Volokh Conspiracy
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Second Amendment Roundup: Supreme Court to decide status of unlawful drug users.
ATF’s expansive regulation conflicts with U.S. position that only habitual users are disarmed.
The Supreme Court has granted cert in U.S. v. Hemani, which concerns the constitutionality of 18 U.S.C. § 922(g)(3), which forbids a person from possessing a firearm in or affecting commerce if he "is an unlawful user of … any controlled substance." The United States just filed its opening brief, stating: "At issue here is Section 922(g)(3)'s disarmament of a defined class of people—habitual users of controlled substances, i.e., those who regularly and unlawfully use drugs that are subject to the Controlled Substances Act, 21 U.S.C. 801 et seq. That restriction is temporary and limited: a person regains his ability to possess arms as soon as he stops habitually using drugs."
The ban applies only to someone who "is an unlawful user of or addicted to" a controlled substance, and the U.S. brief states:
courts of appeals have uniformly determined that a person is a "user" of a controlled substance within the meaning of Section 922(g)(3) only if he engages in the habitual or regular use of a controlled substance. That interpretation reflects the ordinary meaning of Section 922(g)(3)'s text. In this context, the verb "use" means "to take or consume (an alcoholic drink, a narcotic drug) regularly or habitually."
A radically-more expansive definition of "user" is taken by the Bureau of Alcohol, Tobacco, Firearms & Explosives (ATF), and the United States does not even acknowledge or mention it in its brief. Defining "Unlawful user of or addicted to any controlled substance," 27 C.F.R. § 478.11 provides:
An inference of current use may be drawn from evidence of a recent use or possession of a controlled substance or a pattern of use or possession that reasonably covers the present time, e.g., a conviction for use or possession of a controlled substance within the past year; multiple arrests for such offenses within the past 5 years if the most recent arrest occurred within the past year; or persons found through a drug test to use a controlled substance unlawfully, provided that the test was administered within the past year. (Emphasis added.)
Drug use "within the past year" is a far cry from "the habitual or regular use" of a drug. ATF's regulation is one reason why the Fifth Circuit found § 922(g)(3) violative of the Second Amendment. In Hemani, the Fifth Circuit granted summary affirmance for the defendant based on its prior precedent U.S. v. Daniels (2025), in which the district court gave the ATF regulation as a jury instruction. The jury was told that one is an "unlawful user" based on use of drugs "within a matter of days or weeks" or based on a "pattern of use or possession."
As Hemani noted in his brief in opposition to cert, "Contrary to Petitioner's claim, the restriction as defined by Section 478.11 does not 'last[] only as long as the habitual drug use continues.' … To belabor the point, the term 'habitual drug use' is nowhere to be found in Section 478.11." His brief also points out that the National Instant Criminal Background Check System (NICS) uses ATF's definition in determining whether to disapprove firearm transfers.
To be sure, the validity of the ATF regulation is not the ultimate issue in Hermani. As the Solicitor General states in his brief, "The only dispute is a narrow one: does the longstanding body of restrictions support disarming only people actively under the influence of alcohol or controlled substances, as the Fifth Circuit has held and as respondent contends? Or does the historical record also support temporarily disarming people who habitually use alcohol (and, today, controlled substances)?" The Court will resolve that issue based on its text-history method set forth in Bruen and applied in Rahimi.
But to support its argument that a person who "is an unlawful user" of illegal drugs is one who habitually and regularly uses drugs, the government should take this opportunity to disown ATF's overly-expansive definition, and however it resolves the case, the Court should do the same. The ordinary meaning of the statutory terms governs, not an administrative agency's expansive gloss on those terms.
The Court in Loper Bright Enterprises v. Raimondo, which reasserted the power of the judiciary to interpret the law and abrogated the Chevron deference doctrine, states that "every statute's meaning is fixed at the time of enactment." It recalled its reasoning in Abramski v. U.S. (2014) in construing the Gun Control Act (GCA) that "criminal laws are for courts, not for the Government, to construe," and that "ATF's old position [is] no more relevant than its current one—which is to say, not relevant at all." Abramski's further remark also applies here: "Whether the Government interprets a criminal statute too broadly (as it sometimes does) or too narrowly … a court has an obligation to correct its error."
More recently in Garland v. Cargill, the Court undertook a meticulous analysis of the GCA's definition of "machinegun" and held that ATF exceeded its regulatory powers by changing that definition. More broadly, the pre-Loper Bright handwriting has long been on the wall, as evidenced in U.S. v. Apel (2014), which flatly stated that "we have never held that the Government's reading of a criminal statute is entitled to any deference." As Justice Scalia wrote, concurring in Crandon v. U.S. (1990), "we have never thought that the interpretation of those charged with prosecuting criminal statutes is entitled to deference."
The bill that resulted in the GCA of 1968 originally would have made it an offense to violate "any rule or regulation promulgated thereunder." In Senate debate, based on the argument that only Congress should define crimes, the reference to regulations was deleted. 114 Cong. Rec. 14792-93 (1968). That remains reflected in the GCA today, § 922 of which makes certain acts unlawful and § 924 of which punishes violations of "this chapter," not regulations. Section 926(a) authorizes the Attorney General to "prescribe only such rules and regulations as are necessary to carry out the provisions of this chapter," but that only includes administrative matters like serial numbers and licenses.
Given the above, the Hemani case makes it all the more timely for the Attorney General, pursuant to the President's Executive Order of February 7, 2025, to "examine all … regulations … and other actions of executive departments and agencies (agencies) to assess any ongoing infringements of the Second Amendment rights of our citizens," including those promulgated by the Department of Justice and ATF. DOJ and ATF have in fact been conducting such review, which should result in repeal of the various definitions in § 478.11, like the one at issue here, that purport to expand the reach of the criminal law.
The SG's brief in Hemani makes the welcome statement at the beginning: "For the Founders, the Second Amendment stood second to none among the Bill of Rights. They regarded the right to 'keep and bear arms' for lawful purposes as 'the true palladium of liberty' and believed that infringements of the right would put liberty 'on the brink of destruction.'" The further briefs that will be filed on both sides will shed light on whether § 922(g)(3) violates the Amendment. It would help clear the air and assist the Court if the United States would concede in its reply brief that the ATF's expansive definition in § 478.11 is inaccurate and does not represent the law.
