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Who is the Zig-Zag Man? Discover the history of Le Zouave, the iconic mascot behind Zig-Zag rolling papers, and his influence on cannabis culture, music, art, and fashion.
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Until last week, federal law prohibited marijuana users from owning or possessing firearms, even in states where marijuana is legal. In recent years, we have covered the differing opinions by federal courts challenging this status quo. On June 18, 2026, the Supreme Court held in a 9-0 decision in U.S. v. Hemani that 18 U.S.C. § 922(g)(3)’s blanket prohibition on drug users possessing guns is inconsistent with the Second Amendment.
Ali Hemani is a dual citizen of the U.S. and Pakistan, born in Texas. In 2022, the government searched his family home over suspected terrorism-related activity. During the search, Hemani surrendered his gun, pointed agents to marijuana on the property (agents also found a small amount of cocaine in a closet), and told them he used marijuana several times a week. Based on that statement and his possession of the firearm, the government charged him under 922(g)(3) for knowingly possessing a gun while being an unlawful user of a controlled substance. It was the only charge brought against him. No charges were filed related to terrorism, drug trafficking, or anything else.
Notably, the government never alleged that Hemani was an addict, that he posed a danger to himself or others, or that he did anything with the gun beyond keeping it at home. At trial, Hemani successfully moved to dismiss the indictment on Second Amendment grounds, and the Fifth Circuit upheld the dismissal, prompting the government to seek Supreme Court review. The Court found that the government “fail[ed] on every metric” to make its case. The outcome itself wasn’t surprising, but the unanimity was.
I, along with our law firm, have been saying for years that 922(g)(3) was unconstitutional. In fact, Shane Pennington, Christian Sederberg, and I once tried raising money to bring this same type of challenge. At the time, there was a lot of interest, but no one wanted to pay – a common reality in this industry. I have researched this issue thoroughly, and after the Supreme Court’s decision in N.Y. State Rifle & Pistol Association v. Bruen, it was clear that 922(g)(3) would not survive.
The Supreme Court’s decision is narrow in its findings but broad in its application.
Before I discuss the Hemani case in further detail, I should provide a brief overview of the case that reshaped Second Amendment review (and constitutional challenges generally). In 2021, the Supreme Court held that courts evaluating a claimed constitutional right, such as the right to bear arms, must follow a two-step framework. First, courts ask whether the conduct at issue falls within what the Amendment’s text covers. If it does, the regulation is presumed unconstitutional unless the government can justify it.
To rebut that presumption, the government must show that the regulation fits within the nation’s historical tradition – in this case of firearm regulation. This doesn’t require a historical law that’s a perfect match or near-identical precursor to the modern regulation. Instead, courts must look at whether the regulation reflects the same principles that have historically justified firearm restrictions. The government can satisfy this by drawing analogies, and by demonstrating that today’s regulation serves a comparable purpose–i.e., that it imposes a comparable burden to regulations that were well established historically, even if the specifics differ.
In Bruen, Justice Thomas made clear that courts must confine their analysis to history, eliminating any inquiry into means-end scrutiny, and that the government bears the burden of proving the regulated conduct falls outside the Amendment’s original scope. It cannot meet that burden by simply asserting an important interest; it must show the regulation is consistent with that historical tradition.
Moving now to Hemani, the government had the burden of proving that disqualifying an entire category of people, illegal users of controlled substances, from possessing nearly any firearm for any reason whatsoever had a historical corollary. To do so, the government had to point to historical evidence showing that the firearm ban “comport[s] with history and tradition.” This required proof that 922(g)(3) was “part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.” The government didn’t come close to making that case.
922(g)(3) automatically kicked in the moment someone became a user of any non-prescribed controlled substance and stayed in effect for as long as that use continued. Nothing more was required from the government, not even a trial.
To justify the prohibition, the government, under both the Biden and Trump administrations, relied on what it called “habitual drunkard” laws, while also comparing marijuana users to the mentally ill and terrorists. Not surprisingly, Smart Approaches to Marijuana (“SAM”), a famously pro-alcohol, anti-marijuana advocacy group, submitted a brief to the Hemani Court in support of the gun ban.
SAM and 21 other prohibitionist groups said that while cannabis is “marketed as a ‘chill’ drug by its peddlers,” today’s product has “become increasingly known for its relationship with violence.’” (I’ll ignore their inaccurate conclusion to avoid adding another 1,000 words to this blog post.) SAM, again, is a pro-alcohol group that does nothing to address the extreme violence and harm associated with alcohol use. That’s because (as provided on in SAMs FAQ page) alcohol has a long history in America, is legal, and clears the body within 24 hours. SAM doesn’t seem concerned with the danger’s alcohol poses to society and violence associated with its use. It just seems contented that alcohol is already legal and that most of Western civilization has used it for thousands of years.
The problem with SAM’s arguments and analogizing marijuana users to the mentally ill and to “habitual drunkards” is that the facts don’t support the comparison. On the “habitual drunkard” front in particular, the government’s case had more holes than Swiss cheese.
Historically, before someone could lose any of their rights, even temporarily, the laws the government pointed to generally required some kind of process first. As the Court pointed out: (1) vagrants, for example, typically couldn’t be jailed or sent to a workhouse without first being convicted of an offense; (2) someone deemed a habitual drunkard usually needed a hearing before a body like a probate court before a guardian could be appointed or before they could be committed to an asylum; (3) surety laws commonly called for a hearing before a justice of the peace or similar official before any bond requirement could be imposed. 922(g)(3) includes no such process. It automatically divested someone of their constitutional right to bear arms the moment they became an unlawful drug user.
The Court’s opinion included a rather humorous discussion of the nation’s founders’ drinking habits, noting that if habitual drunkard laws had applied to anyone who simply drank regularly, several of the nation’s most prominent early figures would have been at risk. John Adams reportedly started each day with a tankard of hard cider. James Madison was said by some to drink as much as a pint of whiskey a day, though others dispute this and suggest he favored wine instead, viewing it as the more respectable option. George Washington was known to enjoy several glasses of madeira most evenings, a habit that wouldn’t have marked him as a heavy drinker by the standards of his time. Thomas Jefferson reportedly enjoyed several glasses of wine with dinner. And my favorite example from the Court opinion, just days before the Constitution was signed, a farewell gathering for Washington at a Philadelphia tavern saw 55 guests order 164 bottles of wine, liquor, and beer, plus seven bowls of punch.
In short, early America had a culture where heavy drinking was simply commonplace. One estimate from the era suggests that a large share of the nation’s laborers drank several ounces of hard liquor daily.
Given this backdrop, the historical laws targeting “habitual drunkards” weren’t aimed simply at regular or even excessive drinkers. Instead, they were aimed at people whose drinking left them effectively incapacitated and unable to manage their own affairs. That’s a much narrower category than the one captured by the unlawful user provision in 922(g)(3), at least as the government interprets it.
The Court also questioned whether 922(g)(3) actually accomplishes what the government says it’s meant to do: disarming people who are categorically violent, or who pose an unusual danger to others. The Government’s own actions over the past two decades undermine that position. The Department of Justice has instructed federal prosecutors to scale back enforcement against marijuana users, most states have legalized marijuana to some extent, and the government has taken steps to reclassify certain marijuana products under a less restrictive drug schedule. Some surveys now even suggest that regular marijuana users outnumber regular drinkers in the United States.
If the government can strip away a constitutional right just because it thinks that is necessary, with no evidence, no historical precedent, and no legal justification, that’s a slippery slope. The Court stated that affording the government “broad power to designate any group as dangerous and thereby disqualify its members from having a gun” would risk allowing it to “quickly swallow” the Second Amendment.
This ruling is a narrow. It doesn’t address whether the Government could bar addicts, or people who are currently intoxicated, from possessing firearms. Further, the Court was clear to say that legislatures have powers to disarm categories of people they’ve identified as posing a special risk of misusing firearms. The decision also leaves open whether §922(g)(1) (the separate provision disarming people convicted of felonies) would be affected by this reasoning. And it doesn’t resolve whether the government could still prosecute someone under §922(g)(3) by offering individualized evidence that the person’s drug use makes them a danger to themselves or others, or evidence that a particular drug is so potent, or dangerous for some other reason, that it renders all of its users dangerous. The Court simply found that the historical record the Government put forward doesn’t support the sweeping, categorical restriction it asked the Court to uphold.
Just a quick note on Justice Thomas’ concurrence. He drew on Gonzales v. Raich (the case that expanded interstate commerce review and prevented a medical patient from growing her own medical marijuana at home under federal law) to argue that §922(g)(3) goes beyond what Congress is permitted to regulate under the Commerce Clause. The Constitution gives Congress authority to regulate commerce among the states, but as Thomas argues, based on both the original understanding of that power and the Court’s existing precedents, Congress can’t regulate someone’s possession of a firearm based solely on the fact that the gun once crossed state lines, long before that person ever possessed it. As originally intended, Thomas argues that the Commerce Clause gives Congress authority only to regulate the buying and selling of goods and services that move across state lines. It doesn’t extend to activities that have nothing to do with commercial transactions, such as simply possessing a firearm.
I mention this only to highlight that the same argument could be made to support the legality of simple marijuana possession. Marijuana markets are entirely intrastate, so applying Thomas’ rationale, a person shouldn’t be considered to violate federal law simply by possessing a controlled substance that once crossed state lines and has nothing to do with a commercial transaction. Again, I’m only talking about simple possession, not the purchase and sale of controlled substances under a state legal framework–although I think it too applies.
Hemani is a significant decision, not because it breaks new constitutional ground, but because it forces the Government to actually do the work Bruen demanded of it. The Government must point to history and actual show the danger. it can’t just rely on saying it’s so.
For years, 922(g)(3) operated on the assumption that drug use alone was reason enough to strip someone of a fundamental right: no hearing, no individualized findings, no historical grounding required. The Court unanimously rejected that assumption, and rightly so. A constitutional right that can be switched off by the Government, with no process and no proof of danger, isn’t much of a right at all.
Hemani doesn’t open the door to drug addicts or intoxicated individuals carrying firearms, and it doesn’t strip legislatures of all power to regulate this space. What it does is remind the Government that broad, categorical restrictions on constitutional rights require more than a plausible-sounding policy justification. They require evidence, history, and tradition, exactly the kind of evidence the Government couldn’t produce here.
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Modern cultivation techniques and spiritual practices collide with Pink Boost Goddess on our next Legendary Strains episode.
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On April 28, 2026, Acting Attorney General Blanche (“AG”) issued a notice of hearing concerning the proposed rule to move marijuana from Schedule I to Schedule III of the Controlled Substances Act (“CSA”). The notice replaced the hearing that began in December 2024 (“2024 Hearing”), which the AG terminated upon issuing the new notice.
The hearing invited interested persons, as defined in 21 CFR 13011.01(b), to file a notice of intention to participate. Under that regulation, an interested person is someone adversely affected or aggrieved by “any rule or proposed rule issuable pursuant to [] 21 U.S.C. 811,” the provision governing rescheduling under the CSA.
On June 18, 2026, the DEA published the participant list for the new hearing. The seven approved participants all oppose rescheduling. That fact has generated significant debate within the cannabis industry, not because of who was selected, but because of who was not.
When I first saw the list, I did not view it as particularly significant. At first glance, these participants appear to fit within DEA’s definition of interested persons. Proponents of Schedule III generally do not. After spending more time thinking about it, I began to question my initial reaction.
The central issue is straightforward. The hearing will consist entirely of prohibitionist arguments. No invited participant will be present to rebut those arguments or affirmatively advocate for Schedule III. Many will correctly note that HHS’s recommendation, DEA’s proposed rule, and the nearly 43,000 comments (70% of which support rescheduling) submitted during the notice-and-comment process already contain the arguments in favor of rescheduling. That is true. Even so, there is something inherently problematic about a proceeding in which only one side is allowed to present its case.
As I discussed this issue with others within the industry, two competing views emerged. One side sees rescheduling entirely as a political process. From that perspective, the participant list is largely irrelevant because the ultimate outcome will be driven by politics rather than procedure. The other side focuses on the administrative record, where evidence, not politics, will determine the outcome. Under that view, excluding proponents matters because it creates a one-sided proceeding that could influence future litigation and the DEA’s ultimate decision..
In the 2024 Hearing, proponents were permitted to participate after successfully arguing that they qualified as “interested persons” because they would be adversely affected by rules DEA would need to promulgate if marijuana were moved to Schedule III. The current hearing relies on the same definition of “interested person” and the same underlying statutory framework. Yet this time, no proponents were permitted to participate. The obvious question is: what changed? It wasn’t the law.
DEA has not explained why proponents who were deemed sufficiently affected to participate in the 2024 Hearing are no longer sufficiently affected in 2026. That omission is particularly noteworthy given that the potential outcomes remain the same. DEA could move marijuana to Schedule III, leave it in Schedule I, or place it in Schedule II. Each of those outcomes would directly affect the interests of those advocating for rescheduling.
Even after proponents were permitted into the 2024 Hearing by DEA, the ALJ in the case applied a separate four-part framework to determine whether proponent participation was appropriate. Under that framework, only the National Cannabis Industry Association was granted full standing, although several other proponents were permitted to participate in a more limited capacity. Importantly, Judge Mulrooney considered whether a participant’s involvement “would meaningfully assist the decision-making.” That consideration appears to be absent from the current hearing, despite the fact that proponents could provide arguments, evidence, and perspectives that are otherwise missing from the record.
The 2024 Hearing recognized that proponents had a sufficient interest in the outcome to warrant participation. The same conclusion should apply here. The definition of “interested person” extends to anyone adversely affected by a rule or proposed rule that DEA is authorized to issue. Because DEA has the authority to maintain marijuana in Schedule I, move it to Schedule II, or place it in Schedule III, proponents of rescheduling plainly have interests that could be affected by the agency’s final decision. In most legal contexts, parties whose interests may be materially impacted by government action are afforded an opportunity to be heard. Excluding proponents from this hearing therefore raises legitimate questions not only about fairness, but also about whether the administrative record will fully reflect the arguments and evidence on both sides of the issue.
This exclusion of qualified parties raises serious concerns as to the DEA and ALJ’s motives for the hearing. Administrative hearings generally impose broader and more flexible requirements that than Article III courts. Article III standing should serve as the ceiling for participation, not the floor. Federal courts routinely recognize the importance of allowing affected parties to protect their interests, even when they are not parties to the litigation. Federal Rule of Civil Procedure 24, for example, permits intervention when a non-party’s interests may be impaired by the outcome of a case.
While an administrative hearing is not federal litigation, the underlying principle is the same. When individuals or organizations have a meaningful stake in the outcome, there is value in allowing their arguments and evidence to become part of the record, ensuring not only a more complete evidentiary record but also a fair and balanced proceeding. Here, proponents of Schedule III have a direct interest in the outcome, yet they have been excluded from participating.
That is why the one-sided nature of this hearing is concerning. The issue is not simply fairness. It is whether the administrative record will fully reflect the arguments on both sides of one of the most significant drug policy decisions in modern history. As the 2024 Hearing demonstrated, preserving the record matters. Any final scheduling determination will almost certainly be challenged in court, and the record developed during these proceedings will play a central role in that review.
Some have argued that allowing only prohibitionists to participate could ultimately strengthen a final Schedule III determination. Under that theory, if DEA moves forward with rescheduling after hearing only from opponents, a reviewing court could conclude that critics were given every opportunity to present their case. That argument has some merit.
The concern here arises if DEA ultimately declines to move marijuana to Schedule III and instead places it in Schedule II. A Schedule II determination would acknowledge accepted medical use while leaving many of the industry’s most significant tax burdens intact. If that is the outcome, the hearing record may consist largely of prohibitionist testimony, prohibitionist studies, and prohibitionist interpretations of the evidence. DEA would effectively be left as the only entity defending its proposed rule and HHS’s recommendation.
That is a risk the industry should not ignore. Regardless of where marijuana is ultimately placed, litigation is virtually certain to follow. The question is whether the record being developed today will be strong enough to withstand that challenge tomorrow.
This concern becomes even more significant given the longstanding speculation about opposition to rescheduling from within the DEA. When former DEA Administrator Anne Milgram did not sign the proposed rule, questions emerged about whether resistance within the agency led to her decision. Whether those concerns were justified remains unclear, but they illustrate why some observers are uneasy about relying exclusively on DEA to defend the proposal.
The industry should not focus solely on whether DEA ultimately issues a final order moving marijuana to Schedule III. It should also be focused on the administrative record that will accompany that decision into the inevitable litigation that follows. Regardless of where DEA ultimately places marijuana, a legal challenge is almost certain.
That reality makes the composition of the record critically important. If the record consists primarily of HHS’s recommendation, public comments, and a hearing dominated by prohibitionist arguments, courts may be left with an incomplete picture of the evidence supporting rescheduling. While HHS’s recommendation remains a significant piece of the record, it was completed years ago and will undoubtedly be challenged by opponents using more recent studies and data.
Proponents of Schedule III often point to HHS’s findings as the strongest indication that rescheduling will ultimately occur. That may prove to be correct. The problem, however, is that HHS’s recommendation cannot defend itself. If opponents present current studies, expert testimony, and critiques of HHS’s analysis during the hearing, someone must be prepared to respond. Without proponents participating in the proceeding, many of the studies, experts, and arguments supporting rescheduling may never become part of the hearing record.
Another issue involves the prohibitionist argument regarding HHS’s accepted-medical-use analysis. SAM and others contend that HHS’ reliance on a new two-factor framework rather than the five-factor approach historically associated with FDA review was arbitrary. There is nothing inherently improper about an agency modifying its analytical framework. Agencies do so regularly. The problem is that if neither HHS/FDA nor outside proponents actively defend the rationale during the hearing, those arguments may never be fully developed in the record.
That is why preserving the record matters just as much as the ultimate scheduling determination. The issue is not simply whether DEA reaches the correct outcome. It is whether the record supporting that outcome is robust enough to withstand judicial review.
Of course, all of this assumes that legal process is what ultimately drives the outcome. Many within the industry believe that assumption is wrong.
Many observers view rescheduling primarily through a political lens. Under that perspective, the hearing itself is secondary. What matters is whether the administration has already decided where it wants to land.
I have seen this industry argue this dynamic before. When Senators Booker, Schumer, and Wyden introduced the Cannabis Administration and Opportunity Act (“CAOA”), the industry urged patience and confidence in Sen. Schumer and the legislative process. When Sen. Schumer shelved a vote on SAFE Banking in favor of the CAOA, critics were told not to worry and to trust that meaningful reform was coming. Despite continually fundraising on cannabis liberalization, Sen. Schumer was never going to push meaningful reform that could pass Congress. The same thing could be happening here.
I hear similar arguments today. Many people assume Schedule III is inevitable because of President Trump’s prior statements supporting reform. I am not nearly as confident. Political support is not the same thing as a final decision, and anyone who has followed cannabis policy for the last decade knows how quickly expectations can change.
That uncertainty is one reason the hearing itself remains important. If Schedule III were truly inevitable, one could reasonably ask why DEA chose to hold another hearing at all. DEA already possessed HHS’s recommendation, its own proposed rule, and a substantial public record. There were legal pathways available that did not require the process now unfolding. The hearing is not needed.
That does not mean rescheduling will fail. It simply means that confidence should not be mistaken for certainty.
At the same time, the political landscape has changed. Many within the industry believe that the path to Schedule III depends less on legal arguments and administrative procedure than on political relationships and influence. Whether that view is correct remains to be seen, but it reflects a growing belief that marijuana rescheduling has moved beyond traditional administrative law and into the realm of executive discretion and political decision-making.
That belief has fueled much of the optimism surrounding Schedule III. If the outcome has already been decided at the highest levels of government, then the hearing itself may be little more than a procedural formality. Under that view, concerns about who participates in the hearing, what evidence is presented, and how the record is developed become far less significant.
The problem with the “political influence” argument is that it focuses almost entirely on the decision itself and not on what happens afterward. Even if political influence ultimately contributes to a Schedule III determination, the resulting order will still be subject to judicial review. Circuit courts are not going to evaluate political relationships or campaign promises. In fact, relying on a quid pro quo for rescheduling could backfire and lead a court to side with opponents. A court is going to care about the merits and administrative record, not living up to a quid pro quo.
That brings us back to the central concern raised throughout this article. If the record presented to the court is dominated by prohibitionist testimony, prohibitionist studies, and prohibitionist arguments, then even a favorable scheduling determination could face significant challenges on appeal. The same reasoning that many believe guarantees Schedule III could ultimately increase the importance of the hearing record that is being created today.
The ALJ for this hearing just issued an order laying out the process for this hearing. While opponents retain control of arguments presented, the DOJ/DEA retain the ability to call their own witnesses during the hearing. That may provide one of the clearest indications of where the agencies actually stand on rescheduling. If DOJ/DEA call representatives from HHS/FDA, or other witnesses who support Schedule III and can defend HHS’ recommendation against the prohibitionist arguments raised during the hearing, that would be a positive sign for the prospects of rescheduling. On the other hand, if they decline to present witnesses in support of their own proposed rule, it could signal that the road to Schedule III remains far longer–and more uncertain–than many in the industry currently believe.
The significance of this hearing depends on a question that nobody can yet answer: is marijuana rescheduling ultimately being driven by law or by politics?
Either way, excluding proponents from the hearing is a serious concern. A one-sided record creates risks for both the administrative process and any future litigation.
The reality may lie somewhere between those two extremes.
What seems clear to me is that the cannabis industry cannot afford to rely exclusively on politics. Nor can it assume that legal arguments alone will carry the day. Long-term success requires both. The industry should continue supporting reform politically while also insisting on rigorous procedures and a complete administrative record. Only then can it help build a durable transition from prohibition to a stable and sustainable regulatory framework.
For more on marijuana rescheduling and the DEA rulemaking process, please check out these recent posts:
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The Washington State Liquor and Cannabis Board (LCB) published an interesting bulletin this Tuesday, June 16th. The bulletin finds that DEA’s final rule on medical marijuana rescheduling “does not appear to apply to Washington’s cannabis licensees, due to the statutory framework predominantly regulating recreational cannabis.”
The word “predominantly” is doing a lot of work in that sentence; and LCB qualified its findings, stating: “this may not be our final interpretation as information is evolving and the determination may not rest with the state.” That’s fair enough—I tend to agree with the final clause.
Washington may be the first state to publish an opinion of sorts on how rescheduling may affect its licensees. It’s a very important issue, which we began tracking prior to April 28th, when DEA’s final rule took effect. As a refresher, the final rule orders that 1) state-legal, medical marijuana, and 2) FDA-approved marijuana drugs, both be moved from schedule I to schedule III of the federal Controlled Substances Act.
Whether rescheduling applies to businesses in states that operate through a unified, recreational and medical marijuana market, and make both adult-use and medical marijuana sales, is a crucial question. In most (all?) states with adult use cannabis programs, medical cannabis regulation and sales have been absorbed into the adult use regime.
If—and it’s a big if—the final rule survives litigation, operators who are entitled to leverage medical marijuana’s schedule III status will have significant advantages. These advantages include potential export rights and certain income tax relief, to start.
In a blog post titled “Marijuana and Income Tax”, published April 27th, I hashed out the issue addressed in the bulletin:
In states with adult-use programs, the analysis could be complex. All states with adult-use marijuana programs also have medical marijuana programs. Most of these states have blended their programs to varying degrees. In some states, a plant may begin in adult-use CTS, grown by a non-medical licensee, but evolve into a medical marijuana item somewhere along the supply chain. The resulting product may or may not be more potent, will likely be packaged differently, and may or may not be taxed. Invariably, though, it is transferred or sold to a medical marijuana cardholder. It has undergone a definitional transformation, if not a physical one.
The licensees in these mixed supply chains may be adult-use licensees, with “endorsements” or “registrations” or other permissions to create or handle medical marijuana products. At the grow level, the distinction is virtually meaningless—a marijuana plant is just a marijuana plant, after all. But, are these hybrid operators “state licensees” within the meaning of the Order? They handle medical marijuana, but they also traffic in non-medical marijuana. They may or may not segregate inputs; they may or may not segregate outputs. You can see where I’m going with this.
Washington certainly saw where I (or probably this) was going, and published its bulletin. Before doing so, LCB advises that it spoke with “state agency partners as well as other states via the Cannabis Regulators Association (CANNRA) and the National Governors Association.” Assuming the LCB’s interlocutors came down with a similar analysis to the bulletin, there may be something of a consensus forming here.
If the final rule holds, and the LCB analysis is correct, we may see more states follow in the path of California, another unified market which has undertaken reforms to help its licensees take advantage of the final rule. It is likely that CANNRA and others are also working on this issue, although the topic was not squarely addressed in CANNRA’s April 27 overview of the final order.
We’ll continue to update on state action in response to the final rule, along with relevant litigation and other federal developments. Stay tuned! In the meantime, check out the following, related posts:
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