Three Months After Hemani, Congress Has Not Moved. The Justice Department Has.

Hemani held that prosecuting a man under the unlawful user provision of 18 U.S.C. 922(g)(3), based on nothing but his admitted marijuana use a few times a week, is inconsistent with the Second Amendment. Justice Gorsuch wrote for the Court, joined by six colleagues. Justice Alito, joined by Justice Kagan, concurred only in the judgment. The Fifth Circuit was affirmed, which means the indictment stays dismissed and the case is over.

The opinion goes out of its way to say the decision is narrow, and it lists what it does not decide. That list is where patient counseling belongs, because it contains almost every scenario a patient is likely to be in.

A large share of medical cannabis patients own firearms, and many of them have spent years believing that answering a question on a federal form honestly would end in prosecution. Some stopped using cannabis for that reason. Some stopped disclosing it to their physicians, which is the part that reaches clinical care.

A clinician is not the right person to give firearms law advice, and should not try. But a clinician is frequently the first person a patient asks, and being able to say accurately what changed, what did not, and where the remaining exposure sits is a reasonable thing to be able to do without stepping outside scope.

Ali Hemani is a dual citizen of the United States and Pakistan, born in Texas, who was living with his parents in the Dallas area and working a stable job. During a 2022 search of the family home, he surrendered a gun he kept there, pointed agents to marijuana on the property, and told them in a consented interview that he used marijuana about every other day. More than six months later, relying solely on that admitted use, the government charged him under section 922(g)(3).

The government’s legal theory was that the statute automatically disarms anyone who is an unlawful user of any controlled substance, from the moment they become one until they stop, without regard to which substance, in what amount, whether their use has ever made them dangerous, why they keep a gun, or how safely they store it. To justify that under the Second Amendment framework from Bruen and Rahimi, the government analogized to historical habitual drunkard laws.

The Court found the analogy failed on each metric the government proposed. Historical habitual drunkard laws targeted people whose drinking left them practically incapacitated and unable to manage their affairs, not people who drank regularly. Vagrancy, civil commitment, and surety laws served purposes other than protecting the public from unusually dangerous people. And each of those historical mechanisms provided some form of process before a person lost a liberty, where section 922(g)(3) on the government’s reading divests the right automatically with no pre-deprivation process at all.

The final section of the Court’s analysis is one paragraph long and it is the paragraph patients need. The Court states that its decision is narrow and then names what it does not address: efforts to ban addicts or people who are presently intoxicated from possessing a firearm; other prophylactic laws Congress might adopt after determining that users of a particular drug pose a special risk of misusing firearms; the separate felon provision at section 922(g)(1); and whether the government could bring a section 922(g)(3) prosecution accompanied by individualized proof that a defendant’s drug use makes him a danger to himself or others.

Read that list against a real patient. Someone with a cannabis use disorder diagnosis is in the first category. Someone who keeps a firearm accessible and uses cannabis in the evening is arguably in the same category on any night they are intoxicated. Someone whose record includes a felony conviction is in the third. The ruling is genuinely significant, and it also leaves most of the practical exposure untouched.

The Court also noted something clinicians should register: the government’s own conduct undercut its dangerousness claim. The Justice Department had directed federal prosecutors to curtail enforcement against marijuana users, most states have legalized marijuana to some degree, and the government had recently moved some marijuana products from Schedule I to Schedule III.

Six months before the decision, on January 22, 2026, the Justice Department published a final rule at 91 FR 2698 revising the regulatory definition of unlawful user of or addicted to any controlled substance at 27 CFR 478.11. It took effect on publication and received far less attention than it deserved.

The 1996 definition it replaced allowed an inference of current unlawful use from a single incident: one drug conviction, one failed test, or one admission of use within the past year. The amended definition removes those single-incident examples. It now turns on a person who regularly uses a controlled substance over an extended period of time continuing into the present, and states that unlawful use requires evidence of sufficient regularity and recency to indicate the individual is actively engaged in that conduct.

It adds that a person is not an unlawful user if they have ceased regular unlawful use, or if their use is isolated or sporadic and does not demonstrate a pattern of ongoing use. For a patient who used cannabis twice last year, that is a meaningful change in the operative federal definition, and it predates Hemani rather than following from it.

On August 20, 2026, roughly two months after Hemani, the Justice Department published a final rule at 91 FR 54054 implementing criteria for relief from federal firearms disabilities under 18 U.S.C. 925(c). It amends 27 CFR Part 478 and creates a new 28 CFR Part 107. It takes effect September 21, 2026, and the Department, rather than ATF, processes the applications.

The rule sets presumptive disqualifiers, some permanent and some time-limited, and an extraordinary circumstances exception. It also does something specific about cannabis. The preamble states that in light of Hemani, and in response to comments objecting to presuming ineligibility for unlawful marijuana users, the final rule excludes from the status-based presumptions those individuals whose unlawful use of or addiction to a controlled substance consists only of marijuana.

There is a wrinkle worth naming plainly. The application requires affidavits from three references, unrelated by blood or marriage, who have known the applicant at least three years, attesting under penalty of perjury that to their knowledge the applicant is not an unlawful user of or addicted to any controlled substance, and the rule says that attestation applies regardless of whether the substance has been legalized or decriminalized for medicinal or recreational purposes in the applicant’s state. Marijuana-only use no longer creates a presumption against relief, and the reference attestation still asks the underlying question.

The Congressional Research Service published a Legal Sidebar on July 7, 2026, LSB11450, titled Supreme Court Rules Federal Gun Ban Unconstitutional as Applied to Marijuana User. Its Considerations for Congress section observes that the Court stressed the narrowness of its ruling and recognized room for legislative action, and that Congress might amend the law to capture more narrowly only those individuals who, because of their use or the nature of the drug involved, may present a danger to themselves or others.

That is a description of legislative options, which is what CRS products are for. It is not a forecast, and it should not be read as one. Section 922(g)(3) has not been amended. Nothing in the record between June 18 and today suggests a rewrite is close, and the plain reading of three months of silence is that the statute stands as written while the executive branch adjusts around it.

For patients, that distinction is the whole point. Counseling should track what has been enacted and what has taken effect, not what a research memo says a legislature could do if it chose to.

Everything load-bearing here comes from a published opinion of the Supreme Court and from final rules printed in the Federal Register with citations and effective dates. Those are the strongest available sources for what the law is, and they can be read directly rather than through summaries.

What none of them can tell you is how a given United States Attorney will exercise discretion, how a licensed firearms dealer will interpret a form, or how any of this interacts with a specific state’s licensing scheme. Those are the questions patients tend to be asking, and they sit outside what a published opinion resolves.

The most common misreading of Hemani is that it legalized firearm possession for cannabis consumers. It did not. It held that this prosecution of this man on this record could not stand, and it explicitly declined to resolve the categories most patients fall into. As-applied relief is real relief, and it is narrower than a facial holding.

The second misreading runs the other way, treating the Court’s reservations as a warning that prosecutions are imminent. Nothing in the record supports that either. The honest position is that the broad theory is gone, the narrow theories are undecided, and the Justice Department has spent 2026 loosening rather than tightening the surrounding regulations.

The opinion does not establish that cannabis use is irrelevant to firearm safety, and it takes no position on that question. It is a decision about historical analogues and constitutional method, not about impairment. A person who is intoxicated and handling a firearm is a safety problem regardless of what the Second Amendment permits.

It also does not resolve state law. States regulate firearm licensing and carry permits on their own terms, and several condition eligibility on controlled substance use in ways this ruling does not touch. A patient asking whether they may carry in their state is asking a state law question that a federal constitutional holding does not answer.

The federal posture toward cannabis in 2026 has been a series of narrow, technical adjustments rather than a single reversal. FDA-approved products containing marijuana moved to Schedule III in April while marijuana itself stayed in Schedule I. The broader rescheduling proceeding continued through a hearing that began in late June without a final rule. The definition of an unlawful drug user was narrowed in January. Relief from firearms disabilities was reorganized in August.

Read together, those actions describe a government stepping back from categorical treatment of cannabis consumers without saying so in a single headline. That pattern is easy to miss if you follow only the legislative debate, and it is the pattern that actually reaches patients.

I have had this conversation in clinic more times than I can count, and it almost never starts as a legal question. It starts with a patient who stopped taking something that was working, or who will not put it in their chart, because of a form they have to sign somewhere else.

What I tell them now is shorter than it used to be. The Supreme Court threw out the government’s broad theory in June, and the Justice Department has narrowed the definition of who counts as an unlawful user. That is real. It is also not a clean answer, because the Court deliberately left open the situations involving addiction, intoxication, and individualized proof. If your question is whether you personally are safe on a federal form, that is a question for a lawyer, and it is worth the consultation. What I can tell you as your physician is that hiding your cannabis use from me makes your care worse and does nothing for your legal position.

Hemani ended the government’s categorical theory that any marijuana user is automatically disarmed, and the January rule narrowed who counts as an unlawful user in the first place. Neither one clears a patient who is addicted, presently intoxicated, or the subject of individualized proof of dangerousness, and Congress has not rewritten the statute. Refer firearms questions to counsel, and keep the clinical conversation on impairment, storage, and honest disclosure.

Carry forward two facts and one habit. The facts are that the categorical theory lost and that the regulatory definition of an unlawful user now requires a pattern of regular, recent use rather than a single incident. The habit is to check the effective date on anything you are told about this subject, because the most consequential change of 2026 takes effect on September 21 and most summaries still predate it.