Courts Grapple With ‘Constitutional Attacks’ On Law Barring Marijuana Users From Gun Ownership, Congressional Researchers Note

A new report from congressional researchers examines the state of law
around a federal statute that prohibits gun possession by consumers of
marijuana and other illegal drugs, noting that a growing number of federal
courts are now “finding constitutional problems in the application of at
least some parts” of the prohibition, known as Section 922(g)(3).

Given the evolving landscape, the Congressional Research Service (CRS)
report says, Congress “may review Section 922(g)(3) and other federal
firearms provisions to assess whether amendments may strengthen these laws
or add clarity as to their application, or whether any such laws should be
rescinded.”

The federal statute specifically prevents someone who is an “unlawful user”
of an illegal drug from buying or possessing firearms. Courts in recent
years have been divided on whether the federal government’s ban on gun
ownership by cannabis users is lawful, especially when broadly applied.

Before a 2022 U.S. Supreme Court decision known as *New York State Rifle &
Pistol Association v. Bruen*, “federal circuit courts uniformly upheld” the
firearms restriction against legal challenges. But *Bruen* did away with a
two-step test to evaluate a Second Amendment challenge, replacing it with
what the new CRS report calls “a history-centered framework” in which “the
government must demonstrate that the regulation is consistent with this
Nation’s historical tradition of firearm regulation.”

Then, in 2024, the Supreme Court issued a ruling in *U.S. v. Rahimi*, a
case having to do with firearm possession among people subject to domestic
violence restraining orders. Justices subsequently remanded a number of
pending cases back to lower courts for reconsideration, including *U.S. v.
Daniels*, which centers on the federal gun prohibition for cannabis
consumers.

When the *Daniels* case was first heard by the U.S. Court of Appeals for
the Fifth Circuit, judges declared the gun restriction unconstitutional.
After the Supreme Court remanded the case back to the Fifth Circuit, the
appeals court in a January opinion again took issue with the statute,
explaining that while 922(g)(3) wasn’t unconstitutional on its face, it
*was* unconstitutional as applied to a defendant who was only an occasional
cannabis user.

“[T]he government’s burden of proof was too low, as it was not required to
convince a jury that Daniels was presently or even regularly intoxicated at
the time of arrest,” the court said. “And even if the government had
persuaded the jury that Daniels was frequently intoxicated, here…the
government offers no Founding-era law or practice of disarming ordinary
citizens ‘even if their intoxication was routine.’”

The Department of Justice “has not pointed to sufficiently analogous
historical laws to establish why Daniels himself should be considered
presumptively dangerous,” the opinion continued, noting that jury
instructions at the defendant’s trial “left open the possibility that
Daniels had not even unlawfully used a controlled substance in several
weeks.”

The new CRS report describes *Daniels* as “one of the few appellate cases
holding an existing federal firearm law to be unconstitutional at least as
applied to a particular defendant.”

“On remand, the Fifth Circuit reached the same conclusion as it had
previously,” it says. Citing another Fifth Circuit decision, *U.S. v.
Connelly*—which opined that “there is a substantial difference between an
actively intoxicated person and an ‘unlawful user’ under § 922(g)(3)”—the
court ruled that a jury instruction in *Daniels* lacked was too “nebulous.”

The ruling said that “the jury could have found Daniels guilty even while
believing that he had not used marihuana for several weeks,” adding that
“Daniels was convicted for exactly the type of ‘habitual or occasional drug
use’ that we said, in *Connelly*, could not support an indictment (let
alone a conviction).”

Given changes in legal precedent since *Braun*, the CRS report concludes,
“courts are grappling with the renewed constitutional attacks to firearms
laws and regulations, including the categorical restrictions in 18 U.S.C. §
922(g).”

“*Daniels*,” it says, “demonstrates that lower courts post-*Rahimi* are
finding constitutional problems in the application of at least some parts
of Section 922(g).”

The CRS report says in a “Considerations for Congress” section that
lawmakers “may review Section 922(g) and other federal firearms provisions
to assess whether amendments may strengthen these laws or add clarity as to
their application, or whether any such laws should be rescinded.”

“Congress may also consider the framework set forth in *Bruen* as it crafts
and considers new firearms legislation,” it says.

Separately in Pennsylvania earlier this month, a federal district judge
dismissed a lawsuit challenging firearm ban, ruling that the prohibition is
constitutional and that patients can avoid legal jeopardy “by simply
choosing an alternative treatment.”

“Plaintiffs have no constitutional right to use marijuana—medical or
otherwise, and there are no allegations that medical marijuana is the only
available treatment for their medical conditions,” U.S. District Judge
Cathy Bissoon, an Obama appointee, wrote in the ruling.

That suit was filed in January of last year by Warren County District
Attorney Robert Greene, who is a registered medical cannabis patient in the
state, and with the Second Amendment Foundation (SAF), which advocates for
gun rights.

Unlike some other recent federal court rulings around the constitutionality
of the restriction—such as in the U.S. Court of Appeals for the Fifth and
Eighth Circuits—the district court dismissal maintained that the law is
sufficiently similar to other historical government limits on the Second
Amendment, such as preventing firearm possession by intoxicated people and
individuals with mental illness.

“After careful consideration, the Court agrees that the Government has
shown that Sections 922(g)(3) and (d)(3) are ‘relevantly similar’ to
historical regulations aimed at preventing potentially dangerous persons
from possessing and using firearms, including the mentally ill and the
intoxicated,” the June 30 ruling says. “Although the Court of Appeals for
the Third Circuit has not yet addressed directly the provisions challenged
here, this finding is consistent with the overwhelming weight of authority
upholding the facial constitutionality of Sections 922(g)(3) and/or (d)(3)
and related regulations.”

Bissoon’s ruling dismisses the suit with prejudice, meaning the case is now
closed and cannot be amended and refiled. “Because the Court’s decision
rests primarily on legal conclusions and not on insufficient factual
allegations,” it says, “it finds that further amendment would be futile.”

CRS points out in the new report that the Department of Justice “has not
sought Supreme Court review of the Fifth Circuit’s opinion in *Daniels*
following remand.”

The matter could nevertheless soon be taken up by the U.S. Supreme Court.
In a recent petition for review by justices, U.S. Solicitor General D. John
Sauer argued that despite recent appeals court decisions calling the
constitutionality of the firearms ban into question, the restriction is
nevertheless lawful.

“Section 922(g)(3) complies with the Second Amendment,” the government’s
filing in that case, *U.S. v. Hemani*, says. “That provision targets a
category of persons who pose a clear danger of misusing firearms: habitual
users of unlawful drugs.”

The federal statute “bars their possession of firearms only temporarily,”
the government petition says, “and leaves it within their power to lift the
restriction at any time; anyone who stops habitually using illegal drugs
can resume possessing firearms.”

Notably, while the government mentioned “habitual” users of illegal drugs
40 times in its filing, that word does not itself appear in 922(g)(3). The
language of the statute prohibits anyone “who is an unlawful user of or
addicted to any controlled substance” from purchasing or possessing
firearms or ammunition.

A reply brief from the plaintiff in the case is due to the Supreme Court by
July 21.

While DOJ is asking the high court to take up the *Hemani* case, at least
two other, similar cases are waiting in the wings: *U.S. v. Cooper* and *U.S.
v. Baxter* both of which also hinge on the constitutionality of 922(g)(3).

In *Cooper*, an Eighth Circuit U.S. Court of Appeals panel dismissed a
three-year prison sentence against a person convicted for possession of a
firearm while being an active user of marijuana. Judges in that case ruled
that government’s prohibition on gun ownership by drug users is justified
only in certain circumstances—not always.

“Nothing in our tradition allows disarmament simply because [the defendant]
belongs to a category of people, drug users, that Congress has
categorically deemed dangerous,” their ruling said.

In *Baxter*, the Eighth Circuit ruled 922(g)(3) unconstitutional as applied
to the facts in the case.

Judges in that case wrote that there were insufficient factual findings in
the record “for this Court to review Baxter’s as-applied Second Amendment
challenge.” Nevertheless, the they wrote, “We reverse the district court’s
ruling on Baxter’s as-applied Second Amendment challenge and remand to the
district court for further proceedings consistent with this opinion.”

In recent weeks, the government has sought further time from the court to
decide whether to seek an appeal in the other cases. And when DOJ filed its
appeal in *Cooper*, it further asked the court to slow walk the case,
requesting justices “hold the petition for a writ of certiorari pending the
disposition of the petition in *United States v. Hemani…*and should then
dispose of this petition as appropriate.”

One reason DOJ could be focused on the high court taking up *Hemani* in
particular is that the defendant is not only a cannabis user but also a
user of cocaine who’s sold drugs in the past, perhaps reasoning that he is
a less sympathetic face of drug consumers’ gun rights. Defendants in the
other cases were merely found in possession of both a firearm and marijuana.

If the Supreme Court takes up *Hemani* and declares 922(g)(3)
constitutional, such a ruling could could mean government wins in the
remaining cases.

One risk to the government appealing the lower court rulings are that if
the Supreme Court does take the case, justices may in fact rule unfavorably
to the government, possibly cementing that § 922(g)(3) is—in at least some
cases—unconstitutional.

A number of federal courts in recent months have cast doubt on the legality
of § 922(g)(3), finding generally that while the ban on gun ownership among
drug users may not be entirely unconstitutional, there’s scant historical
precedent for such a broad restriction of Second Amendment rights on an
entire a category of people.

Earlier this year, for example, a federal judge in Rhode Island ruled that
the ban was unconstitutional as applied to two defendants, writing that the
government failed to establish that the “sweeping” prohibition against gun
ownership by marijuana users was grounded in historical precedent.

The Fifth Circuit’s *Daniels* ruling—in a three-judge panel ruled that the
firearms ban was unconstitutional as applied—came on the heels of a string
of other judicial decisions casting doubt on the legality of the ban.

A federal judge in El Paso, for instance, ruled late last year that the
government’s ongoing ban on gun ownership by habitual marijuana users is
unconstitutional in the case of a defendant who earlier pleaded guilty to
the criminal charge. The court allowed the man to withdraw the plea and
ordered that the indictment against him be dismissed.

Another panel of judges, on the U.S. Court of Appeals for the Tenth
Circuit, heard oral arguments in November in the government’s appeal of a
district court ruling that deemed the gun ban unconstitutional.

In a number of the ongoing cases, DOJ has argued that the prohibition on
gun ownership by marijuana users is also supported by a recent U.S. Supreme
Court decision, *U.S. v. Rahimi*, that upheld the government’s ability to
limit the Second Amendment rights of people with domestic violence
restraining orders.

DOJ has made such arguments, for example, in favor of the firearms ban in a
case in a case in the U.S. Court of Appeals for the Eleventh Circuit. In
that matter, a group of Florida medical cannabis patients contends that
their Second Amendment rights are being violated because they cannot
lawfully buy firearms so long as they are using cannabis as medicine,
despite acting in compliance with state law.

DOJ under President Joe Biden consistently argued that medical marijuana
patients who possess firearms “endanger public safety,” “pose a greater
risk of suicide” and are more likely to commit crimes “to fund their drug
habit.”

It remains unclear how the Trump administration will approach the cases. At
a NRA conference in 2023, Trump suggested there might be a link between the
use of “genetically engineered” marijuana and mass shootings. He listed a
number of controversial and unproven factors that he said at the time he
would direct the Food and Drug Administration (FDA) to investigate as
possibly causing the ongoing scourge of mass shooting afflicting the
country.

“We have to look at whether common psychiatric drugs, as well as
genetically engineered cannabis and other narcotics, are causing psychotic
breaks” that lead to gun violence, he said.

DOJ has claimed in multiple federal cases over the past several years that the
statute banning cannabis consumers from owning or possessing guns is
constitutional because it’s consistent with the nation’s history of
disarming “dangerous” individuals.

In 2023, for example, the Justice Department told the U.S. Court of Appeals
for the Third Circuit that historical precedent “comfortably” supports the
restriction. Cannabis consumers with guns pose a unique danger to society,
the Biden administration claimed, in part because they’re “unlikely” to
store their weapon properly.

Last year, Biden’s son Hunter was convicted by a federal jury of violating
statute by buying and possessing a gun while an active user of crack
cocaine. Two Republican congressmen challenged the basis of that
conviction, with one pointing out that there are “millions of marijuana
users” who own guns but should not be prosecuted.

The situation has caused confusion among medical marijuana patients, state
lawmakers and advocacy groups, among others. The National Rifle
Association’s (NRA) lobbying arm said recently that the court rulings on
the cannabis and guns issue have “led to a confusing regulatory landscape”
that have impacted Americans’ Second Amendment rights.

“Marijuana use is no longer limited to the domain of indigenous religious
customs or youth-oriented counterculture and now includes a wide variety of
people who use it for medicinal or recreational reasons,” said the advocacy
group, which does not have an official stance on cannabis policy generally.
“Many of these individuals are otherwise law-abiding and productive members
of their communities and want to exercise their right to keep and bear
arms.”

Meanwhile, some states have passed their own laws either further
restricting or attempting to preserve gun rights as they relate to
marijuana. Recently a Pennsylvania lawmaker introduced a bill meant to remove
state barriers to medical marijuana patients carrying firearms.

Colorado activists also attempted to qualify an initiative for November’s
ballot that would have protected the Second Amendment rights of marijuana
consumers in that state, but the campaign’s signature-gathering drive
ultimately fell short.

As 2024 drew to a close, the ATF issued a warning to Kentucky residents that,
if they choose to participate in the state’s medical marijuana program
that’s set to launch imminently, they will be prohibited from buying or
possessing firearms under federal law.

The official said that while people who already own firearms aren’t
“expected to” turn them over if they become state-legal cannabis patients,
those who “wish to follow federal law and not be in violation of it” must
“make the decision to divest themselves of those firearms.”

Since then, bipartisan state lawmakers have introduced legislation that
would urge Kentucky’s representatives in Congress to amend federal law to
clarify that users of medical marijuana may legally possess firearms,
though no action has since been taken on that bill.

Kentucky Gov. Andy Beshear (D) said in January that he supported the
legislature’s effort to urge the state’s congressional delegation to call
for federal reforms to protect the Second Amendment rights of medical
marijuana patients, but the governor added that he’d like to see even more
sweeping change on the federal level.

“I think the right way to deal with that is not just to focus on that
issue, but to change the schedule of marijuana,” Beshear said at a press
conference. “What we need to change is the overall marijuana policy by the
federal government.”

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Marijuana Users From Gun Ownership, Congressional Researchers Note appeared
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