Second Amendment

Jacob Sullum | 1.28.2026 4:05 PM

Judging from federal survey data, nearly a quarter of Americans 18 or older used marijuana in 2024, while 16 percent reported using it during the previous month. Those numbers suggest that somewhere between 43 million and 62 million Americans are disqualified from gun ownership because of their cannabis consumption, even if they live in one of the 40 states that have legalized marijuana for medical or recreational use. Marijuana users who nevertheless try to exercise the Second Amendment right to keep and bear arms are committing up to four federal felonies.

In United States v. Hemani, a case the Supreme Court is scheduled to hear on March 2, the Trump administration is asking the justices to uphold that policy, which it says is perfectly reasonable and constitutional. Not so, the Liberty Justice Center (LJC) says in a new brief urging the Court to reject the notion that cannabis consumers pose a danger that justifies disarming them simply because they use a federally prohibited drug. The LJC argues that "treating all cannabis users—nearly one-fifth of the adult population—as presumptively dangerous criminals is incompatible with historical tradition, modern societal norms, and this Court's own framework for Second Amendment analysis."

Under 18 USC 922(g)(3), the original version of which Congress enacted in 1968, an "unlawful user" of "any controlled substance" commits a felony punishable by up to 15 years in prison if he receives or possesses a firearm. The same conduct can qualify as three additional felonies, meaning a cannabis consumer who obtains a firearm theoretically could be sent to prison for nearly half a century. As I explain in my new book, Beyond Control, the people subject to those stiff penalties include millions of Americans who pose no plausible threat to public safety.

That situation, the IJC brief notes, is especially puzzling in light of marijuana reforms that started with decriminalization of low-level possession in the 1970s and culminated in state legalization of recreational use, which began in 2012. Today, 24 states, accounting for most of the U.S. population, allow recreational use—a policy supported by a large majority of Americans.

Those Americans include President Donald Trump, who endorsed a 2024 ballot initiative that would have legalized recreational marijuana in Florida. But although Trump recently ordered the "expeditious" reclassification of marijuana under the Controlled Substances Act, that change does not affect the status of cannabis consumers under federal gun laws. And despite Trump's support for legalization in Florida, his administration maintains that even people who consume marijuana in compliance with state law, including patients who use it for symptom relief as well as recreational users, thereby surrender their Second Amendment rights.

The case before the Supreme Court........

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