U.S. v. Hemani: When Drunk Founders Decide Modern Gun Rights
On June 23, 2026, the Supreme Court decided United States v. Hemani, one of the Term’s last major cases and another example of the late‑June ritual where nine unelected individuals issue opinions that can instantly reshape constitutional rights.
Hemani looks like a civil‑liberties win: the Court holds that 18 U.S.C. §922(g)(3), which disarms “unlawful” drug users, violates the Second Amendment as applied to a non‑violent, cooperative marijuana user. But the decision’s reliance on the “history and tradition” test reveals how odd—and ultimately vacuous—this mode of analysis has become.
The Case in Brief
Ali Hemani, a dual U.S.–Pakistani citizen living near Dallas, cooperated fully when federal agents searched his home for suspected terrorism, surrendering his gun and acknowledging he used marijuana “about every other day.” Months later, he was indicted only under §922(g)(3), on the theory that regular marijuana use automatically stripped him of his Second Amendment rights and subjected him to 15 years’ prison and lifetime disarmament.
Lower courts dismissed the case; the Supreme Court affirmed, holding §922(g)(3) unconstitutional as applied to him.
Bruen’s History‑and‑Tradition Turn
Under Bruen, the Court first finds Hemani’s conduct covered by “the right of the people to keep and bear Arms.” It then asks whether §922(g)(3) fits within the Nation’s “historical tradition” of firearm regulation. Instead of means‑end scrutiny, Bruen demands “relevantly similar” founding‑ or Reconstruction‑era laws to justify modern regulations.
Here, the government points to “habitual drunkard” laws that allowed confinement, guardianship, or surety bonds for those who regularly consumed intoxicants, arguing they are analogues to §922(g)(3)’s ban on unlawful drug users. Hemani’s rights are made to turn on whether those drunkard laws are close enough in spirit and operation to a modern gun‑and‑drug statute.
Drunk History as Doctrine
To test that analogy, the majority digs into historical materials—chancery decisions, territorial codes, medical texts, temperance tracts—and concludes “habitual drunkard” was a narrow category: someone intoxicated for a “considerable part” of their time, “incapable of conducting [their] own affairs,” “mentally incompetent,” or “dangerous to [themselves] or others.”
By contrast, §922(g)(3), as the government reads it, disarms any regular user of any scheduled drug for any non‑prescribed purpose, regardless of dose, context, or actual risk.
To underscore the mismatch, the Court lingers on the drinking habits of the Founders and their contemporaries. It notes:
John Adams’s tankard of hard cider with breakfast.
Reports of James Madison consuming a pint of whiskey daily, alongside sources stressing his preference for wine.
George Washington’s three glasses of madeira in the evening, “not enough to be considered a heavy drinker in his day.”
Thomas Jefferson’s three or four glasses of wine at dinner.
The staggering alcohol tab at Washington’s City Tavern farewell—dozens of bottles of wine, madeira, porter, cider, and bowls of punch—just before the Constitution was signed.
Combined with temperance‑era thresholds that treated even substantial daily liquor intake as “occasional drunkenness,” the opinion announces that early America had a “culture of copious drinking” and that drunkard laws were reserved for the truly incapacitated. From there, it concludes those laws are too narrow to justify §922(g)(3)’s sweeping disarmament of regular drug users.
On its own terms, the logic is tidy: narrow historical categories cannot support broad modern bans. But the spectacle is hard to ignore: modern constitutional rights are being calibrated by whether John Adams’s cider or a tavern’s party bill would have triggered 19th‑century drunkard statutes. That focus on elite 18th‑century drinking habits highlights just how thin the analytic connection is between past practice and present constitutional judgment.
The Dead Hand Problem
Hemani exposes deeper flaws in the history‑and‑tradition test:
It elevates old statutes and elite commentary as primary sources of constitutional meaning, despite reflecting a small, privileged segment of society and conditions wildly different from today’s.
It treats historical silence or harsh regulation as decisive, even when technology, social norms, and the identity of rights‑holders have fundamentally changed.
It sidelines democratic judgment and empirical evidence, forcing legislatures to justify modern laws through analogies to centuries‑old rules rather than current data on risk and public safety.
In Hemani, a contemporary statute about guns and drugs is evaluated not through current evidence about substance use and violence, but through how probate courts once classified drunkenness and how much alcohol political elites consumed.
Concurring Doubts and a Broader Trend
Justice Jackson, joined by Justice Sotomayor, concurs in the result but calls Bruen “unworkable,” urging a return to means‑end scrutiny that weighs government interests against burdens on rights and considers “the real and present stakes” of gun violence. Justice Alito, joined by Justice Kagan, agrees the drunkard analogues are too narrow to support §922(g)(3) here but does not question Bruen itself.
Hemani stands alongside Bruen, Rahimi, and Dobbs in a growing pattern: the Court uses “history and tradition” not just to inform rights, but to control them, tethering modern constitutional law to eras in which many of today’s rights‑holders had little voice. Hemani shows that this approach can occasionally protect individuals, but it does so by turning constitutional doctrine into a debate over how drunk the Founders really were. And what that says about who may own a gun today.
