Hemani Didn't Change Security Clearance Rules for Marijuana Users

On June 18, 2026, every justice agreed that the government could not automatically prosecute Ali Hemani for possessing a firearm based solely on the marijuana-use theory presented in his case. If you hold a security clearance, treating the decision as permission to use marijuana could jeopardize your career.

What the Court Actually Decided

Ali Hemani is a dual U.S.–Pakistani citizen, born in Texas, who lived with his parents in the Dallas area and held a steady job. In 2022 federal agents searched the family home on suspicion of terrorism-related activity. He cooperated: he surrendered a gun he kept in the house, pointed agents to marijuana on the property, and sat for an interview in which he volunteered that he used marijuana about every other day.

More than six months later, the government indicted him. Not for terrorism — that theory went nowhere. Not for the cocaine found in his parents' closet, which Hemani claimed as his, while maintaining that his mother had hidden it and that he had not used it recently. On one charge only: possessing a firearm in his own home while being an unlawful user of a controlled substance, based solely on his admission about marijuana.

The exposure was up to fifteen years in prison under 18 U.S.C. § 924(a)(8) and a lifetime firearms prohibition.

The district court dismissed the indictment. The Fifth Circuit affirmed. The Supreme Court granted certiorari and affirmed again. United States v. Hemani, No. 24–1234, 608 U.S. ___ (2026) (slip op.).

Justice Gorsuch's opinion turned on the burden the government set for itself. As the government construed § 922(g)(3), the ban attaches automatically the moment someone becomes an unlawful user of any scheduled substance, in any amount, regardless of whether the use ever made him dangerous, why he keeps a gun, or how safely he does so. To justify a rule that broad under New York State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1 (2022), the government offered historical "habitual drunkard" laws: vagrancy statutes, civil-commitment statutes, and surety-of-good-behavior statutes.

The analogy failed on every axis the government proposed.

The who: a founding-era habitual drunkard was not a regular drinker. He was someone intoxicated to the point of losing his reasoning faculties — statutes variously defined the term as being "incapable of conducting [his] own affairs," "mentally incompetent," or having "lost the power of self-control." The Court noted that John Adams took a tankard of hard cider with breakfast, Washington drank three glasses of madeira most evenings, and Jefferson took three or four glasses of wine at dinner. In what the opinion called a "culture of copious drinking," the label meant genuine incapacity.

The why: vagrancy laws targeted people who "did not meet the societal expectation of work" — the same statutes swept in "pipers, fidlers, . . . stubborn servants or children, [and] common nightwalkers." Civil-commitment laws protected drunkards from themselves and their families from ruin. Surety-of-good-behavior laws protected the community from scandals "against good morals." None of them was about disarming a category of unusually dangerous people.

The how: every one of those historical mechanisms provided process first. A vagrant went to a workhouse on conviction. A habitual drunkard got a guardian after a probate proceeding. A surety required a hearing before a justice of the peace. Section 922(g)(3), on the government's account, strips a constitutional right automatically, with no pre-deprivation process at all.

The Reasoning That Does Not Travel

The Court's fourth and final criticism is the one worth sitting with, because it is where the analysis that helps Hemani stops helping a clearance holder.

Justice Gorsuch questioned whether § 922(g)(3) even serves the purpose the government claimed. Part of the reason was the government's own conduct. DOJ had directed federal prosecutors to curtail enforcement against marijuana users. Federal marijuana possession sentencings dwindled. Forty states, three territories, and the District of Columbia legalized some marijuana use. And after oral argument in this very case, the government moved some marijuana products from Schedule I to Schedule III. 91 Fed. Reg. 22714.

The Court's conclusion: having helped fuel these developments, the federal government is awkwardly positioned to suggest that the millions of Americans who now regularly use marijuana are categorically and unusually dangerous.

How Narrow This Actually Is

The Court said so itself, in a passage that reads like a warning label. Hemani does not address:

• Banning drug addicts from possessing firearms. The government never argued Hemani was an addict, so § 922(g)(3)'s addiction prong was not before the Court.
• Banning people who are presently intoxicated from possessing firearms.
• Other prophylactic laws Congress might adopt after determining that users of a particular drug pose a special risk of misusing firearms.
• § 922(g)(1), the felon-in-possession provision — including drug felonies.
• Whether the government could bring a § 922(g)(3) prosecution supported by individualized proof that this defendant's drug use makes him a danger.
• Whether a particular drug always renders its users dangerous by potency or otherwise.

Justices Alito and Kagan concurred in the judgment on the narrowest available ground and would have said nothing more. Justice Thomas wrote separately to argue that § 922(g) exceeds Congress's Commerce Clause power altogether — an issue not presented and not decided. Justice Jackson, joined by Justice Sotomayor, joined the Court's opinion in full while urging that Bruen be retired in favor of means-end scrutiny. The outcome drew support from justices reasoning in opposite directions, which is itself a caution against reading the decision as a trend.

So: on facts materially comparable to Hemani's, the federal government may not automatically prosecute a marijuana user under § 922(g)(3) merely from proof of regular unlawful use and firearm possession, without the additional showing the Court reserved. That holding applies nationwide, although its precise reach will be worked out in later cases. It does not establish an unlimited right to possess firearms while using marijuana, nor does it invalidate § 922(g)(3) in every application — and it is not a statement about anyone's clearance.

Why Hemani Does Not Help You in an Adjudication

The Second Amendment limits when the government may deprive a person of a constitutional right. A security clearance determination does something fundamentally different. It is not a criminal punishment or a civil penalty. It is a predictive national security judgment about whether the Executive Branch should entrust an individual with access to classified information.

Under Department of the Navy v. Egan, 484 U.S. 518 (1988), no one has a right to a security clearance. The authority to grant or deny access to classified information is committed to the discretion of the Executive Branch, and the governing standard asks whether access is clearly consistent with the interests of national security — a standard that resolves doubt against the applicant. Security clearance determinations are predictive, not punitive.

Compare the two proceedings and the mismatch becomes structural:

	§ 922(g)(3) prosecution	Clearance adjudication
Nature of the action	Criminal punishment	Predictive judgment about future trustworthiness
What is at stake	Liberty and a constitutional right	Access to classified information — not a right
Burden	The government must justify the restriction against historical tradition	Agency identifies and supports the security concern; the individual bears the practical burden of mitigation and establishing that eligibility is clearly consistent with national security
Standard	Proof beyond a reasonable doubt; Bruen framework applies	Clearly consistent with the interests of national security; doubt resolved against the individual
Constitutional check	Second Amendment, fully operative	Egan — committed to executive discretion

Hemani does not supply a substantive Second Amendment defense to a Guideline H adjudication. A clearance decision concerns access to classified information, not the deprivation of the firearm right at issue in Hemani.

What Actually Governs Your Eligibility

These are the authorities that decide the question. Hemani touched none of them — but the April 2026 rescheduling reached the last one on this list, which is why it is described at length rather than cited in passing:

• Adjudicative Guideline H (Drug Involvement and Substance Misuse) — the primary standard for drug-related conduct, concerned principally with the illegal use of controlled substances, including the misuse of prescription and non-prescription drugs. See the free Marijuana & Security Clearances guide.
• Adjudicative Guideline E (Personal Conduct) — honesty, candor, and disregard for rules and regulations.
• SEAD 4 — the Security Executive Agent Directive supplying the National Security Adjudicative Guidelines across the Executive Branch.
• ODNI's December 21, 2021 clarifying guidance on marijuana — issued when marijuana remained federally unlawful across the state programs it addressed.
• Executive Order 12564 requires federal employees to refrain from using "illegal drugs" on or off duty. But the order defines that term by reference to Schedule I and II substances. Because the April 2026 order placed qualifying medical marijuana in Schedule III, EO 12564 should not be treated as independently resolving the status of federally authorized medical marijuana use. Recreational marijuana remains Schedule I and continues to fall within the order.

Like every adjudicative guideline, Guideline H is evaluated under the Whole Person Concept, meaning no single fact automatically determines the outcome. That cuts in both directions: an isolated instance of use is not automatically disqualifying, and a strong employment record does not automatically neutralize a sustained pattern of use.

The April 2026 Rescheduling — and the Gap It Opened

Acting Attorney General Todd Blanche signed an order on April 22, 2026 under 21 U.S.C. § 811(d)(1) — a treaty-compliance authority that bypasses notice-and-comment. It took effect April 28, 2026. AG Order No. 6754-2026, 91 Fed. Reg. 22714.

Two categories moved to Schedule III:

• Drug products containing marijuana that have been approved by the FDA — in practice, mainly Epidiolex.
• Marijuana subject to a state-issued license to manufacture, distribute, or dispense for medical purposes only.

The Federal Register title names only FDA-approved products, which has misled a good deal of the commentary. The operative text is broader. The order states that FDA-approved drug products containing marijuana, "as well marijuana in any form covered by a state medical marijuana license," are placed in Schedule III, and the amended schedule entries at 21 CFR § 1308.13(g)(2)–(4) each read "in a U.S. Food and Drug Administration approved product or subject to a state medical marijuana license."

The order did more than move a schedule number. It creates an expedited DEA registration pathway for state-licensed medical marijuana entities, treats a state license as conclusive evidence of state-law authorization, and accepts state recordkeeping, labeling, disposal, and physical-security requirements in place of the federal ones. 21 CFR § 1301.13(k).

Most significantly, 21 CFR § 1301.13(k)(5) provides that — notwithstanding the federal prescription rules — a certification that state law deems sufficient for a patient to obtain medical marijuana is sufficient to permit dispensing under federal law, so long as it is dated and signed the day it is issued, bears the patient's full name and address, and identifies the practitioner and state license number.

That is a real change in the underlying drug law. Anyone telling you the April order was purely cosmetic has not read past the title.

Two practical points reinforce the caution. First, the registration pathway is mid-transition: the Administrator is directed to process applications filed within 60 days of publication within six months, and early applicants may operate under state licenses while review is pending. Second, HHS confirmed in a March 13, 2026 Federal Register notice that federal drug testing panels are unchanged. Marijuana stays on the panel — and a positive result does not arrive with a footnote explaining your schedule analysis.

None of this reaches recreational use. A state adult-use license is not a "state medical marijuana license" as the rule defines it, and recreational marijuana remains Schedule I.

If You Use Recreationally, the Analysis Is Short

For the majority of clearance holders who have used marijuana, none of the foregoing complexity applies. Recreational marijuana is still Schedule I. It therefore still falls within EO 12564's definition of "illegal drugs," it is still a Guideline H concern, and Hemani gives you nothing — it addressed a criminal prosecution, not eligibility. Federal employees have been removed for off-duty marijuana use in states where it was legal under state law. That was true before June 18, 2026, and it is true today.

But the recreational answer has an expiration date on it

The April 28 order did two things. The final order rescheduled the two medical categories immediately. A separate notice of hearing issued the same day opened an expedited administrative proceeding to consider moving all marijuana from Schedule I to Schedule III. 91 Fed. Reg. 22777 (Apr. 28, 2026) (Notice of Hearing).

That hearing began June 29, 2026, and by its own terms concludes no later than July 15, 2026. An ALJ recommendation and any subsequent final rule would follow. If broader rescheduling completes, the recreational analysis above changes at its foundation — and the gap between drug law and adjudicative guidance widens from a question affecting medical patients to one affecting everyone.

Anyone reading this after mid-2026 should check the current posture of that proceeding before relying on the recreational analysis.

Two Traps That Catch People Who Read the Headline

Retroactivity does not work the way you want it to

Recreational marijuana use — or medical use that did not comply with the new federal framework — while prohibited by federal law is not automatically erased as an adjudicative fact by later legalization or rescheduling. Conduct is generally assessed against the law in force when it occurred. The concern was never solely pharmacological; it is that an individual was on notice of a rule and disregarded it, which is a judgment-and-reliability question. And the adjudicator evaluates the whole of the conduct under the Whole Person Concept rather than freezing the analysis at the former law.

Guideline E can be more damaging than the underlying use

Many clearance holders successfully mitigate prior marijuana use. The deciding factor is often honesty, recency, frequency, and evidence that the conduct will not recur — not the mere existence of past use. Adjudicators grant clearances to people with drug history regularly. That said, Guideline H alone can support denial or revocation, particularly where the conduct is recent, frequent, ongoing, workplace-related, or occurred while cleared.

What is far harder to mitigate is concealment. Omitting use from a vetting questionnaire converts a manageable Guideline H issue into a Guideline E falsification issue, and falsification directly implicates honesty, judgment, reliability, and willingness to comply with security requirements — the central qualities the adjudicative process evaluates. It also carries independent criminal exposure under 18 U.S.C. § 1001. Continuous Vetting and automated record checks can bring certain reportable conduct to the government's attention sooner than the traditional periodic-reinvestigation model.

What to Actually Do

• Do not change your conduct based on Hemani. It is a criminal-law holding on one set of facts, and it supplies no defense in an adjudication.
• Do not assume the rescheduling resolves your eligibility. A state certification may satisfy federal dispensing requirements. It does not amend Guideline H, and it does not speak to your agency's employment policy, drug testing program, or reporting obligations.
• Disclose accurately. On the SF-86, and on the Personnel Vetting Questionnaire as it rolls out, answer the question asked, completely.
• If you have already used, get advice before you report — not after. Mitigation is a case you build, and sequence matters. See the free Mitigation Guide.
• If you own or purchase firearms and have used marijuana, understand that Hemani narrowed one prosecution theory. A false answer on ATF Form 4473 may create separate exposure under 18 U.S.C. §§ 922(a)(6) and 924(a)(1)(A), depending on the facts.

Frequently Asked Questions

Does Hemani mean I can use marijuana and keep my clearance?

No. Hemani concerns criminal prosecution under § 922(g)(3) and supplies no substantive defense in a Guideline H adjudication.

Was § 922(g)(3) struck down?

No. The Court ruled as applied to Hemani's facts and expressly reserved addicts, present intoxication, individualized-danger prosecutions, drug-specific prophylactic laws, and § 922(g)(1). The statute remains enforceable in cases the Court did not decide.

Does Hemani apply outside the Fifth Circuit?

Although Supreme Court decisions apply nationwide, Hemani is a narrow as-applied constitutional decision. It does not eliminate § 922(g)(3), and it has no effect on federal security clearance standards.

Didn't marijuana get rescheduled to Schedule III?

In part — FDA-approved marijuana drug products and marijuana subject to a state medical license. Recreational marijuana remains Schedule I. The order materially changed federal drug law for qualifying medical marijuana, but no publicly issued Security Executive Agent guidance has explained how adjudicators should treat use that complies with the new framework.

Does EO 12564 still prohibit medical marijuana use by federal employees?

The text of EO 12564 has not changed, but the rescheduling order may affect how its Schedule I-and-II definition applies to qualifying medical marijuana. Section 7(c) defines "illegal drugs" as Schedule I or II substances and excludes use pursuant to a valid prescription or otherwise authorized by law. Recreational marijuana remains Schedule I and continues to fall within the order.

Does the Second Amendment protect me in a clearance adjudication?

Hemani does not supply a substantive Second Amendment defense to a Guideline H adjudication. Under Egan, there is no right to a clearance and the determination is committed to executive discretion. Security clearance determinations are predictive, not punitive.

If marijuana is legalized later, does my past use stop mattering?

Recreational use — or medical use that did not comply with the new federal framework — while prohibited by federal law is not automatically erased as an adjudicative fact by later legalization or rescheduling.

Should I disclose past marijuana use on the SF-86?

Yes. Many clearance holders successfully mitigate prior use; honesty, recency, frequency, and evidence of non-recurrence usually decide the question. Concealment carries independent exposure under 18 U.S.C. § 1001.

Related reading: for the Court's other June 2026 Second Amendment decision, see Why Hawaii Just Lost at the Supreme Court: Wolford v. Lopez — and on where Statement of Reasons cases are now heard, see the Pentagon legal opinion ending the DCSA clearance hearing program.