Can You Own a Gun and Use Cannabis in New Mexico? What the Supreme Court’s Hemani Decision Could Change

Currently, if you use cannabis legally in New Mexico and own a firearm, you are technically committing a federal felony. It does not matter that recreational marijuana has been legal in this state since 2021. It does not matter that New Mexico allows open carry without a permit. Under federal law, anyone who uses marijuana – recreationally, medically, or otherwise – is prohibited from possessing a gun. The penalty is up to fifteen years in federal prison.

That may be about to change. On March 2, 2026, the United States Supreme Court heard oral arguments in United States v. Hemani, a case that challenges the constitutionality of the federal law at the center of this conflict: 18 U.S.C. § 922(g)(3). A majority of the justices appeared skeptical of the government’s position. A decision is expected by late June 2026, and it could reshape gun rights for tens of millions of cannabis users across the country – including an estimated 150,000 to 200,000 New Mexicans who both use cannabis and own firearms.

This article explains the current law, what the Hemani case is about, what the justices said during oral arguments, and what a ruling could mean for gun owners in Albuquerque, Santa Fe, Las Cruces, and throughout New Mexico.

Federal Gun Law and Marijuana: Why Cannabis Users Cannot Legally Own Firearms

Section 922(g)(3) of Title 18 of the United States Code makes it illegal for any person “who is an unlawful user of or addicted to any controlled substance” to possess a firearm or ammunition. Because marijuana remains classified as a Schedule I controlled substance under federal law, every cannabis user in the country falls under this prohibition – regardless of whether their state has legalized it.

The statute does not define “unlawful user.” It does not say how recently or how often a person must have used cannabis to qualify. It does not require the person to be impaired or intoxicated at the time they possess the firearm. If you used marijuana last week, last month, or with any regularity, the federal government considers you a prohibited person under this law.

This is the same statute that was used to prosecute Hunter Biden in 2024. Biden was convicted on three felony counts related to purchasing a firearm while actively addicted to crack cocaine, before being pardoned by President Biden in December 2024. The Hemani case raises the same constitutional question Biden’s attorneys raised at trial – but with very different facts and a very different outcome in the lower courts.

ATF Form 4473 and Marijuana: Can You Buy a Gun If You Use Cannabis?

Every person who purchases a firearm through a licensed dealer in the United States must complete ATF Form 4473. Question 21(f) asks: “Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?” A bold warning on the form states that marijuana use “remains unlawful under Federal law regardless of whether it has been legalized or decriminalized…in the state where you reside.”

If you answer “yes,” the sale is denied. If you answer “no” while being a current cannabis user, you have made a false statement on a federal form – a separate felony under 18 U.S.C. § 922(a)(6), carrying up to fifteen years in prison and $250,000 in fines. The ATF has also instructed licensed dealers that if they have reason to believe a buyer is a cannabis user – including holding a medical marijuana card – they may not complete the sale.

This means cannabis users in New Mexico face an impossible choice every time they try to purchase a firearm from a licensed dealer. Tell the truth and get denied. Lie and commit a felony. Or buy privately and hope federal agents never ask.

Cannabis and Gun Rights in New Mexico: Legal Under State Law, a Felony Under Federal Law

New Mexico sits at the edge of this federal-state conflict. The state legalized recreational cannabis through the Cannabis Regulation Act, signed into law on April 12, 2021, with retail sales beginning April 1, 2022. Cannabis dispensaries now operate in every major city in the state. At the same time, New Mexico has some of the most permissive gun laws in the country:

• Open carry of loaded firearms requires no license for anyone 19 or older who can legally possess a firearm
• The New Mexico Constitution expressly protects the right to keep and bear arms
• State preemption law prohibits municipalities from regulating firearms
• New Mexico has enacted no state law prohibiting cannabis users from possessing firearms

The result: a 21-year-old in Albuquerque can walk into a licensed dispensary, buy cannabis legally, carry a loaded firearm openly on their hip, and possess both at home – while simultaneously committing a federal felony punishable by up to fifteen years in prison. With over 46 percent of New Mexico adults owning firearms and a cannabis market generating hundreds of millions in annual sales, the number of New Mexicans caught in this legal trap is enormous.

New Mexico notably declined to join the 20-state attorneys general coalition that filed a brief supporting the federal government in Hemani. The state took no position on either side.

United States v. Hemani: The Supreme Court Case That Could Restore Gun Rights for Marijuana Users

Ali Danial Hemani is a Texas resident whose home was searched by FBI agents in August 2022. The search was prompted not by drug or gun concerns, but by suspected ties to foreign organizations. Inside, agents found a Glock 9mm pistol, approximately 60 grams of marijuana, and a small amount of cocaine. Hemani told agents he smoked marijuana about every other day.

He was not charged with drug possession or any other offense – only with violating § 922(g)(3). Hemani moved to dismiss the indictment, arguing the statute violated his Second Amendment rights. The federal district court agreed and dismissed the charge. The Fifth Circuit Court of Appeals affirmed, holding that the federal ban on gun possession by drug users is unconstitutional as applied to someone like Hemani under the Supreme Court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen.

The Trump administration’s Solicitor General petitioned the Supreme Court for review. The Court granted certiorari on October 20, 2025, and heard oral arguments on March 2, 2026.

The Second Amendment Test: How Bruen and Rahimi Apply to Drug Users and Gun Possession

The legal framework governing this case comes from two recent Supreme Court decisions. In Bruen (2022), the Court held that any modern firearm regulation must be “consistent with the Nation’s historical tradition of firearm regulation.” The government cannot simply argue a law serves a good purpose – it must show the restriction has a historical analogue from the founding era or the 19th century.

In United States v. Rahimi (2024), the Court refined this test while upholding a different provision of § 922(g) – the ban on gun possession by persons subject to domestic violence restraining orders. The Court clarified that modern laws do not need an exact “historical twin,” but they must be “relevantly similar” to founding-era restrictions in both purpose and effect.

The gap between Rahimi and Hemani is where this case turns. The domestic violence provision involves a judge determining that a specific person poses a credible threat to another’s safety. The restriction is temporary and tied to the court order. Section 922(g)(3), by contrast, imposes a blanket ban based on a person’s status as a drug user – no judge evaluates dangerousness, no hearing occurs, and the temporal scope is undefined.

Hemani Oral Arguments: Supreme Court Justices Skeptical of Federal Gun Ban for Cannabis Users

The government’s attorney, Principal Deputy Solicitor General Sarah Harris, argued that § 922(g)(3) is constitutionally sound because it mirrors founding-era laws that restricted the rights of “habitual drunkards.” If the Founders tolerated disarming people who were chronic alcohol abusers, the argument goes, Congress can disarm habitual users of substances it considers even more dangerous.

Hemani’s attorney, Erin Murphy, drew a distinction that resonated with multiple justices: historical “habitual drunkards” were not simply people who drank regularly. They were people so impaired by alcohol that they could not function – neglecting families, unable to work, confined to poorhouses. That is a far cry from someone who uses marijuana every other day with no evidence of impairment or dysfunction.

Justice Gorsuch delivered the sharpest questioning. He noted that John Adams drank hard cider with breakfast every morning and James Madison reportedly consumed a pint of whiskey daily – yet neither was considered a “habitual drunkard.” If the Founders themselves would not have qualified, Gorsuch asked, how could Hemani’s every-other-day marijuana use make him one? He posed a hypothetical: “What if a Colorado resident took one THC gummy every night with a medical prescription to help him sleep? Disarm him for life?”

Justice Barrett exposed the statute’s breadth problem. She noted that § 922(g)(3) covers not just marijuana or cocaine, but Ambien, Ritalin, Adderall, Xanax, testosterone, and Tylenol with codeine. A person who takes their spouse’s Ambien without a prescription is a felon under this law, while the spouse with the prescription is not – despite both consuming the identical substance. Barrett observed: the dangerousness does not come from the drug itself in that circumstance.

Justice Sotomayor reinforced the distinction, noting that historical drunkard laws “centered around not merely taking the drug, but the potential effect it had on you because you couldn’t control it.” That, she said, is “very different from people who use marijuana occasionally.”

Only Chief Justice Roberts and Justice Alito appeared clearly sympathetic to the government’s position. Roberts raised concerns about undermining Congress’s judgment on public safety. Alito argued alcohol is “historically different” from illegal drugs. Most observers, including legal analysts from SCOTUSblog, the Duke Center for Firearms Law, and the Rockefeller Institute, predicted a ruling in Hemani’s favor – likely by a margin of 5–2 or wider.

What the Hemani Decision Could Mean for Gun Owners in New Mexico Who Use Marijuana

If the Court strikes down § 922(g)(3) as applied to cannabis users like Hemani, the practical effects for New Mexicans could be significant:

• Cannabis users could legally purchase firearms through licensed dealers without committing a felony on Form 4473
• Existing gun owners who use cannabis would no longer face federal felony exposure for possessing firearms they already own
• Cannabis users could become eligible for concealed handgun licenses, which currently require compliance with federal firearms law
• People previously convicted under § 922(g)(3) for marijuana-related firearms offenses could have grounds to challenge their convictions or seek relief

The scope of the ruling matters. A narrow as-applied decision – holding the law unconstitutional only for non-addicted marijuana users – would leave the statute intact for users of harder drugs. A broader ruling addressing the statute’s vagueness or the absence of any historical tradition for status-based disarmament could reshape federal firearms law far beyond cannabis.

Several related cases are currently being held at the Supreme Court pending the Hemani decision and will likely be sent back to the lower courts for reconsideration once the ruling is issued.

Will Rescheduling Marijuana to Schedule III Restore Gun Rights? No.

There is a widespread misconception that moving marijuana from Schedule I to Schedule III under the Controlled Substances Act would resolve the firearms issue. It would not. Section 922(g)(3) prohibits gun possession by users of “any controlled substance” – Schedules I through V. Moving marijuana to Schedule III keeps it on the controlled substances list. A cannabis user would still be a prohibited person under federal firearms law.

The rescheduling process itself has stalled. The DEA published a proposed rule in May 2024 to reclassify marijuana, received nearly 43,000 public comments, and then sent the matter to an administrative law judge who stayed all proceedings before retiring. President Trump signed an executive order in December 2025 directing the Attorney General to complete rescheduling expeditiously, but the process remains in limbo as of March 2026.

Only three things could fully resolve the conflict: a Supreme Court ruling limiting § 922(g)(3), a congressional amendment to the statute, or full federal de-scheduling of marijuana. The Hemani case is the most likely near-term resolution.

Can I Own a Gun If I Smoke Weed in New Mexico? What to Do Right Now

Until the Supreme Court issues its decision, the current law remains in effect. Cannabis users who possess firearms are still technically in violation of federal law, even in New Mexico. Here is what you should know:

• Do not lie on ATF Form 4473. A false statement is a separate federal felony with severe penalties, and it will not be affected by the Hemani ruling regardless of the outcome.
• Understand that state legality does not override federal law. New Mexico’s Cannabis Regulation Act does not protect you from federal prosecution under § 922(g)(3).
• If you have been charged with or convicted of a firearms offense related to cannabis use, speak with a criminal defense attorney. Depending on the Hemani ruling, there may be grounds for relief.
• If you have a criminal record related to cannabis – whether for possession, use, or a related firearms charge – New Mexico’s expungement laws may allow you to clear that record. The state’s Criminal Record Expungement Act covers both conviction and non-conviction records.

Talk to a New Mexico Firearms and Expungement Lawyer

The intersection of cannabis law, firearms law, and criminal records is one of the most complex areas in New Mexico criminal defense. Whether you are trying to understand your rights as a gun owner who uses cannabis, facing a firearms charge, or looking to clear a criminal record tied to marijuana, Land of Enchantment Law can help.

Johnn Osborn has spent over a decade in New Mexico’s criminal justice system, first as a prosecutor and now as a defense and expungement attorney serving clients in Albuquerque, Las Cruces, Santa Fe, and throughout New Mexico. He understands how federal and state laws interact in practice and can advise you on your specific situation. 

Disclaimer: The information in this article is for general informational purposes only and does not constitute legal advice. You should consult an attorney for advice regarding your individual situation. Contacting Land of Enchantment Law does not create an attorney-client relationship.