In a legal landscape often defined by rigid ideological silos, a surprising alliance has formed at the highest court. Reason reports on a moment where the American Civil Liberties Union (ACLU) and the National Rifle Association (NRA) are standing shoulder-to-shoulder, not over gun control policy, but over the fundamental principle that the government cannot criminalize private conduct without historical precedent. This is not a story about political convenience; it is a story about how the war on drugs collided with the Second Amendment, forcing a civil liberties organization to defend a right it spent decades denying.
The Great Reversal
The piece opens with a striking contrast: the ACLU's historical refusal to defend gun owners versus its current brief supporting Ali Hemani, a Texas cannabis user facing 15 years in prison for possessing a firearm. For years, the organization maintained that the Second Amendment protected only a "collective right" tied to state militias. Yet, as Reason notes, the organization has now asked the Supreme Court to reject the executive branch's attempt to prosecute Hemani under a federal statute that bans gun possession for unlawful drug users.
The shift is stark. "This is the first time that we have entered a case affirmatively on behalf of an individual making a Second Amendment claim," says Brandon Buskey, director of the ACLU's Criminal Law Reform Project, quoted in the piece. The argument hinges on the idea that the right to bear arms is now a "fundamental right," making it a civil liberties issue regardless of the organization's past disagreements with the Supreme Court's interpretation.
This pivot is particularly notable given the context of United States v. Rahimi, where the Court recently upheld restrictions on gun owners subject to domestic violence restraining orders. While Rahimi suggested the government could disarm specific dangerous individuals, the ACLU's stance in Hemani pushes back against a blanket prohibition based on status rather than immediate threat. The piece argues that the ACLU is leveraging the Bruen test—which requires historical tradition to justify gun laws—to protect a client whose only "crime" is smoking marijuana.
"The ACLU gets to pick which cases it takes... you will not see the ACLU taking on any Second Amendment cases, as that is a part of the Bill of Rights that it prefers not to defend."
That quote from Waldo Jaquith, a former board member who resigned in 2017, highlights the magnitude of the change. Jaquith's skepticism seems to have been upended by the sheer overreach of the prosecution. The piece suggests that while the ACLU may still disagree with the Heller decision in theory, the practical reality of "governmental overreach" and the "abuse of prosecutorial discretion" made this case impossible to ignore.
The Collision of Drug Policy and Gun Rights
The core of the argument rests on the specific facts of Hemani's case. The FBI investigated him for potential ties to a foreign terrorist organization but found no evidence. Instead, they found a pistol and marijuana. Under 18 USC 922(g)(3), the mere status of being an "unlawful user" of a controlled substance triggers a felony gun charge. The executive branch, despite its stated commitment to protecting Second Amendment rights, is fighting to reinstate this charge.
Reason highlights the Fifth Circuit's reasoning in dismissing the charge, which the piece describes as a logical application of history. The government argued that early laws banning intoxicated gun carry justified the current ban on drug users. The court rejected this, noting that historical laws were narrow, targeting public safety hazards, whereas the federal statute disarms sober people based on past usage. "Our history and tradition may support some limits on a presently intoxicated person's right to carry a weapon," the court said, "but they do not support disarming a sober person based solely on past substance usage."
This is where the civil liberties argument gains its traction. The piece points out that the ACLU has long been wary of the "war on drugs" and its impact on due process. By joining the brief, the organization is effectively arguing that the drug war has created a class of citizens stripped of their constitutional rights without due process. Zachary Newland, one of Hemani's attorneys, notes that the ACLU brings "gravitas" to the fight against "governmental overreach."
However, a counterargument worth considering is whether this alliance is merely tactical. Critics might note that the ACLU is using Second Amendment precedent to achieve a goal—limiting the drug war—that it could arguably pursue through other constitutional avenues, such as the Fourth Amendment or equal protection clauses. The piece acknowledges the ambiguity, noting that the ACLU's 2015 policy was a "compromise" that neither embraced nor rejected the individual right, leaving the organization in a gray area.
A History of Reluctance
The commentary delves deep into the organization's internal history to explain why this moment is so significant. For decades, the ACLU's position was that "there is no constitutional impediment to the regulation of firearms." In 1979, the national board explicitly stated that the "dangerousness" of firearms justified legal regulation that "substantially restricts the individual's interest in freedom of choice."
The piece reveals that this stance was not always unanimous. Ira Glasser, a former executive director, admitted the 1979 policy was "passed almost by reflex and not [with] much thought." He noted that the dominant political bias of the time led to a reflexive rejection of gun rights, even though the Founding militia consisted of individuals bringing their own arms. Wendy Kaminer, a former board member, recalls the organization's "leeriness" of the Second Amendment, noting that they "just didn't want to go there" even when presented with clear civil liberties violations.
"They just didn't want to think about it. We used to set up committees all the time. It's just a bunch of people sitting around talking about things. But they just didn't want to go there."
This historical context adds weight to the current shift. It wasn't a sudden change of heart about guns, but a realization that the application of gun laws in the context of the drug war violated core civil liberties principles. The piece notes that state chapters, like those in Nevada and Arizona, often broke with the national office to defend individual rights, suggesting the tension was always simmering beneath the surface.
Bottom Line
The strongest part of this coverage is its ability to reframe a potential political oddity as a principled stand against the expanding reach of the drug war. By showing how the ACLU's defense of a cannabis user forces a confrontation with the Bruen test, the piece illuminates a critical intersection of civil liberties that often goes unnoticed. The biggest vulnerability, however, remains the organization's ambiguous official stance; they are defending a right they still technically dispute, which could lead to legal contradictions in future cases. Readers should watch to see if this alliance holds as the Supreme Court grapples with the limits of status-based disarming, or if the ideological friction eventually tears the coalition apart.
"The ACLU gets to pick its cases. Depending on your perspective, the fact that it picked this one is either puzzling or hopeful."
The piece concludes that while the ACLU may not love the Second Amendment, they love the idea of a government that cannot strip a citizen of their rights based on a drug conviction alone. In a world of polarized debates, this rare convergence of the ACLU and the NRA on the side of the individual against the state is a development worth watching closely.