Hemani Didn't Revive Facial Attacks on § 922(g)(3)

The Supreme Court's decision in Hemani did not reopen facial challenges to the federal ban on gun possession by drug users in the Ninth Circuit. On October 13, 2026, the court held in United States v. Youngblood, No. 24-7629, a published opinion, that its 2025 ruling upholding 18 U.S.C. § 922(g)(3) on its face is still binding. It also refused to hear the defendant's as-applied challenge because his brief argued it in one sentence.

What happened

In September 2023, police in Kalispell, Montana, arrested Dylan Youngblood on an outstanding felony warrant. Officers found fentanyl pills on him and two pistols, drug paraphernalia and suspected methamphetamine in his car. He admitted one pistol was his and that he had used fentanyl earlier that day.

He was charged under § 922(g)(3), which bars gun possession by anyone "who is an unlawful user of or addicted to any controlled substance." He moved to dismiss, arguing the statute violates the Second Amendment on its face and as applied to him. The district court denied the motion, finding that applying the law to frequent methamphetamine and fentanyl users fits a "historical tradition of temporarily disarming intoxicated individuals." He entered a conditional guilty plea and appealed.

While the appeal was pending, the Ninth Circuit upheld § 922(g)(3) on its face in United States v. Stennerson, 150 F.4th 1276 (9th Cir. 2025). Then the Supreme Court decided United States v. Hemani, 608 U.S. 772 (2026), holding the statute unconstitutional as applied to a man who "used marijuana 'about every other day.'" That opinion is the starting point for every as-applied challenge that followed.

What the court decided

The facial challenge failed. A panel can depart from circuit precedent only when an intervening Supreme Court decision is "clearly irreconcilable" with it. The court found no such conflict. Hemani "did not consider the statute's facial constitutionality," addressed a "narrow" as-applied challenge, and left open the statute's application to people who are "presently intoxicated." Stennerson had upheld the law facially because, at a minimum, applying it to presently intoxicated people fits the nation's historical tradition. So Stennerson still controls.

The as-applied challenge was waived. The court reviews "only issues which are argued specifically and distinctly in a party's opening brief." Youngblood's as-applied argument in his opening brief was a single sentence. When the government pointed that out, his reply brief said he had "extensively briefed and argued the facts of his case." The court declined to build the argument from his facts section, quoting the line that "judges are not like pigs, hunting for truffles buried in briefs." It also cited Federal Rule of Appellate Procedure 28(a)(8)(A), which requires an argument to contain the appellant's "contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies."

The conviction was affirmed.

Who it affects

• People charged under § 922(g)(3) in the Ninth Circuit. A facial challenge is foreclosed there for now. The open question is the as-applied one.
• People whose facts look like Hemani's. Hemani protects some drug users, but it left room for the government to disarm people who are presently intoxicated. Evidence of drug use on the day of arrest, as in Youngblood, cuts the other way.
• Anyone with a pending gun appeal. An as-applied argument has to be fully made in the opening brief.

From my perspective

After Hemani, the as-applied challenge is where these cases are decided. That argument lives or dies on the record: what substance, how often, how recently, and whether there is any evidence the person was intoxicated while armed.

That means building the record in the district court. A motion to dismiss should lay out the facts the challenge depends on, and if those facts are disputed, ask for a hearing. Then the opening brief on appeal needs a separate, headed argument that applies the history to those facts, with record citations. A sentence at the end of a facial argument is not enough, and the reply brief is too late to fix it.

Our federal gun charges page covers § 922(g) offenses more broadly. Book a consultation and tell us what happened.