How a Cough on a Sleepless Night Could Cost You Your Second Amendment Rights

February 27th, 2026

Written By: Connor Upton

On Monday, March 2, the Supreme Court will hear oral arguments in United States v. Hemani.

The case centers on a Texas man, Ali Danial Hemani, who was indicted under § 922(g)(3) when the FBI searched his house and found a Glock 9mm handgun, 60 grams of marijuana, and 4.7 grams of cocaine.

He wasn't intoxicated when the gun was found nor was he accused of a violent crime. The government's entire case rests on the fact he owned a gun, was found to have these two controlled substances in his possession, and admitted to smoking the marijuana.

In 2022, the Supreme Court established a strict originalist standard for gun laws, ruling that any firearm restriction must have a clear “historical analogue” from the time the nation was founded.

The Hemani case will force the federal government to look in the mirror as the Department of Justice, under a pro-gun administration, is set to defend this ban.

Due to the fact there were no federal laws in the 1700s disarming people for using cannabis, the DOJ is now attempting to argue that modern cannabis/drug consumers are historically equivalent to 18th century habitual drunkards that were occasionally disarmed. They will be drawing analogues from civil-commitment laws for alcoholics, vagrancy laws, and surety laws to make their case.

However, if the originalist Justices accept the government's argument, they would essentially be conceding that the Founding Fathers believed the government had the authority to strip away the constitutional rights of a citizen because they used a controlled substance in their free time– not while handling a firearm.

In our modern era, when you purchase a firearm through a dealer you are required to fill out a federal background check document known as ATF Form 4473.

You must answer, under penalty of perjury, whether you are an “unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance.”

Most people read that and picture hard street drugs and active addiction. But the underlying law relies on the Controlled Substances Act, which broadly categorizes drugs into five schedules.

While this means that users of cannabis and other Schedule 1 substances cannot own firearms, the “any other controlled substance” language stretches all the way down to the lowest tier, Schedule V.

That area is where the legal reality completely detaches from common sense, exposing the crucial flaws in this entire debate.

Schedule V includes common prescription cough preparations containing small amounts of codeine, such as Robitussin AC.

Imagine you have a terrible cough and take a swig from a bottle that was prescribed to your spouse a year ago by a doctor. Innocent enough, right?

Well, because you consumed a controlled substance without a valid prescription issued directly to you, you have become an “unlawful user.” If you own a hunting rifle or a home defense pistol you are now committing a federal felony. In the eyes of the law you should be treated the same as Hemani.

This subjective trap applies across the board. Did you take a leftover Ambien (Schedule IV) from an old no longer valid prescription to sleep on a red-eye flight? Did you borrow a Xanax from a friend because you have a crippling fear of public speaking?

Under the rigid unyielding letter of federal law, the anxious flyer, the coughing spouse, and an occasional cannabis consumer are legally indistinguishable. All of them forfeit their Second Amendment rights.

The law is so vague that it does not define how that “unlawful” status is defined beyond use. Do they mean active users? So what about someone who smoked one cannabis joint five years ago, are they still banned from buying a firearm?

Is possession but not use permitted? Does having a controlled substance on your property invalidate the second amendment? How do they prove use; are we doing mandatory drug testing to be able to bear arms? And is that evenly judged across all controlled substance schedules?

How do they prove and define addiction? What forms or stages of addiction make you an unlawful user?

All these questions expose the reality of the government’s approach: it punishes status rather than conduct.

Every responsible citizen should agree that firearms and intoxication are a disastrous mix. You should not handle a weapon while impaired by cannabis, alcohol, or heavy prescription drugs– just as you shouldn't drive a car.

But § 922(g)(3) doesn't require you to be impaired while holding a gun. It strips away constitutional rights based purely on your private lifestyle or medical choices while leaving far too many questions unanswered.

Upholding this ban would completely shatter the pro-gun community's reliance on historical tradition and it would establish a terrifying precedent: the government can label any subjective non-violent behavior dangerous enough to bypass the Second Amendment.

And this is exactly why we are seeing some strange political unity to rally behind the defendant. Organizations like the NRA, which filed an amicus brief, and the ACLU, which is serving as co-counsel for Hemani, have condemned the ban. They recognize what is truly at stake for our constitution.

The outcome of United States v. Hemani will echo far beyond the cannabis and gun communities, as it is a fundamental stress test for the Second Amendment itself.

This is a moment for Second Amendment purists and cannabis advocates to finally bridge a divide. The federal government’s overreach has inadvertently given them a shared enemy.

If you believe what is spelled out in our Constitution are absolute rights, you cannot allow the government to strip away part of it from millions of Americans based on a THC/CBD vape or an old bottle of cough syrup.

And if you believe in cannabis reform, you cannot accept a reality where participating in a state legal market turns you into a second class citizen under the Bill of Rights.

We do not have to agree on everything, but we should all agree that the Bill of Rights is not a conditional privilege granted only to those who live exactly the way the federal government demands.

It is time to drop the sports-team partisanship for this issue and unite against a law that treats responsible citizens like dangerous felons. We can do better together.