Cannabis Musings - March 4, 2026

Cannabis doesn't quite get a day in Court.

Friends – we talked last fall about the Supreme Court case of United States v. Hemani, where the defendant was prosecuted for owning a firearm while being “an unlawful user of or addicted to any controlled substance.” At that point, when the Court had just agreed to hear the case, we said:

“[W]hat that ruling will be is really hard to guess at this point. On the one hand, the majority of the current Court really likes gun rights. On the other hand, it generally doesn’t like criminal defendants. It all sort of comes down to how they want to define “user.” But this case has everything the Court loves – guns, crime, history, and statutory interpretation, so it’s not too surprising the Court wants to hear it.”

Well, the court finally heard oral argument on the case, and the outcome is now much easier to guess. Or, at least, we kind of have a sense of how they’ll rule, even if it’s still unclear how they’ll get there. Some of the best analysis of the argument is offered by SCOTUSBlog, which I think does a good job of capturing the justices’ skepticism of the government’s argument tying addiction to (an arbitrary) frequency of illegal use. In other words, they argue that it’s not the controlled substance itself, it’s the fact that it’s being used illegally:

JUSTICE GORSUCH: Okay. So that circles us back down to you would qualify as an habitual user one gummy bear every other night?

MS. HARRIS: Absolutely. And here’s why. Their check on that sort of situation is twofold. One is you have to know that you are using an unlawful drug. …

And that unlawful use, naturally, leads to violence.

JUSTICE BARRETT: But -- but – but you said -- and -- and I think it’s clear when you look at the Controlled Substances Act, dangerous is not necessarily the primary reason why or even a reason why all of these drugs land on the list. … Maybe THC concentrations are higher nowadays and that does have bad effects on -- bad mind-altering effects and maybe it gives rise to violence. I just don’t see that -- my -- my -- my concern, and maybe you can dispel it, my concern is I just don’t see that that determination was made here.

MS. HARRIS: I guess I would point you to, again, if you wanted comfort with respect to marijuana in particular, the whole history of rescheduling the determinations made with respect to that substance, et cetera. … I guess I would point to the Court’s cases, which -- which -- many of which have – are cases in which there is a strong connection between marijuana use and violence ….

This here is the heart of our problem – drugs are scary. Responsible gun owners can’t be trusted to also take drugs from time to time, because drugs lead to violence, and violent people shouldn’t own guns, so therefore, drug users shouldn’t have guns. To be clear, this isn’t about possession while under the influence – this is about how we treat drug users themselves, at least in the minds of the federal government.

If you’re bored, the transcript of the argument is fun to read, because it’ll give you a sense of how so much of the discussion is focused on torturing arguments into early US history analogues in order to fit within the Court’s current gun law framework, as well as differences between how US statutes approach “addicts” and “habitual users”. It’s also genuinely funny to hear the justices talk about ayahuasca, meth, and PCP with the solemnity of an ABC Afterschool Special voiceover. But, the argument lays bare that our current approach towards drug policy colors how the justices are thinking about the issues, which shouldn’t come as a surprise, even though it should, because the Court’s recent precedent on gun possession laws says that current policy judgments don’t count.

Notably, the government argued, in the alternative, that it’d consider a ruling that just limited the ban to Schedule I and II controlled substances, which kind of seems like a farcical distinction to make, exposing even more the fiction that this is about reducing risk, when it’s simply about dogpiling.

For our purposes, it’s worth considering that there was a fair amount of discussion about the status of cannabis itself. Rescheduling is mentioned a few times. I don’t think that the opinion is going to provide the industry with a full-throated defense of cannabis, but I suspect that, in addition to Justice Thomas, Justice Gorsuch seems to have thought about cannabis pretty hard:

JUSTICE GORSUCH: And then, secondly, your backup argument is, well, maybe Schedule 1 and 2, we really need those, but not Schedule 3 and -- and the rest of the schedules. If that’s the case, what do we do with this case given that, yes, it’s presently a Schedule 1 drug, but the government itself is considering rescheduling it to a Schedule 3 drug? Why -- why bring this case? Why -- why is this the test case?

…

JUSTICE GORSUCH: Okay. So we don’t even know the quantity of how much he uses every other day. What -- what if he took one gummy bear with a medical prescription in Colorado -- well, you may not even need a medical prescription. You don’t even need that anymore. But let’s say he had one to help him sleep every other day.

If this goes the way of the defendant, which we suspect it will, will that mean anything for the cannabis industry? Directly, no - this is a gun case, not a cannabis case. But it’s helped amplify the public narrative about the inherent irrationality of federal cannabis policy. And if we get some dicta from one of the justices urging Congress to rethink our approach towards the sticky icky, expect cannabis stock traders to lose their minds (not investment advice).

Be seeing you.

© 2026 Marc Hauser. None of the foregoing is legal, investment, or any other sort of advice, and it may not be relied upon in any manner, shape, or form. The foregoing represents my own views and not those of Jardín, B&Y Ventures, or anyone else who employs/hires me.

Watch me schmooze almost every Friday at Noon ET on This Week in Cannabis LIVE with Jeremy Berke and Jay Rosenthal of Cultivated Media and AnnaRae Grabstein and Ben Larson of the High Spirits Podcast. Access the livestream and recordings here.