DOJ Knew Gun Ban For Marijuana Users Is Vulnerable To ‘Litigation Risk,’ Newly Revealed Memo Shows As Supreme Court Takes Up Issue

The Biden administration was evidently concerned about potential legal
liability in federal cases for people convicted of violating gun laws
simply by being a cannabis consumer who possessed a firearm, documents
obtained by Marijuana Moment show.

The previously unpublished 2024 guidance from former President Joe Biden’s
Justice Department generally cautioned U.S. attorneys to use discretion in
prosecuting federal cannabis cases, particularly for offenses that
qualified people for pardons during his term. But one section seems
especially relevant as the U.S. Supreme Court takes on a case challenging
the constitutionality of the current federal gun statute.

Justices in that case recently granted a request from the Trump
administration to extend the deadline to submit initial briefs until
December 12.

The newly disclosed guidance from the Biden administration that was
rescinded in September under Trump states that prosecutors “may pursue
charges under 18 U.S.C. § 922(g)(3) or 18 U.S.C. § 922(d)(3) based on the
unlawful use of, or addiction to, marijuana because the proclamation does
not change the fact that marijuana use violates federal law,” referring to
the statutes that make it a federal crime to possess a gun while being a
cannabis consumer.

However, in order to “mitigate potential litigation risk,” U.S. attorneys
“should be cautious before proceeding under these firearms provisions and
consult with EOUSA’s Controlled Substances Coordinator prior to doing so.”
That seems to be something of an admission of the legal vulnerability of
the hotly contested statute, which has been the subject of rulings by
several federal appeals courts in recent months.

The broader Biden-era guidance, issued on February 26, 2024 wasn’t
publicized even as the then-president was campaigning for a second term
that year. That’s despite Biden repeatedly touting the cannabis pardons and
his directive for a federal review into marijuana that resulted in a
recommendation to reschedule the plant.

The U.S. attorney for Wyoming, Darin Smith, said last month that the recent
rescission reenforces his office’s intent to use “every prosecutorial tool
available to hold offenders accountable.”

As far as the gun issue is concerned, the document may well be of interest
to attorneys contesting the legality of the federal statute—8 U.S.C. §
922(g)(3)—in courts across the country, including one that reached the
Supreme Court level, *U.S. v. Hemani*.

The Trump administration has routinely argued that the policy restricting
gun ownership by people who use cannabis, even in compliance with state
law, “targets a category of persons who pose a clear danger of misusing
firearm” and should be upheld.

After several years of conflicting lower court rulings on related cases,
justices granted cert in *U.S. v. Hemani *to settle the question of whether
the ban is consistent with the Second Amendment.

Meanwhile, a coalition of gun rights organizations recently urged the
Supreme Court to expand its examination of the constitutionality of the
federal firearm ban for cannabis consumers—telling justices that a recent
case on the issue it accepted would not properly settle the question of the
current law’s constitutionality.

The Second Amendment Foundation (SAF) and five other gun rights advocacy
groups filed an amici brief last month in a separate case on the issue
pending before the justices.

William Sack, director of legal operation at SAF, told Marijuana Moment
that “it’s not at all surprising to us that the Biden administration was
aware of the shaky constitutional underpinnings of the ban on gun ownership
for folks that use medical marijuana,” referring to the newly disclosed
guidance.

“And it was right to expect litigation over it,” he said.

“We here at SAF have been suing the government since 1974. As more and more
states have acknowledged the lawful medical benefits of marijuana use, the
ongoing federal ban—and gun rights prohibitions that come along with
it—have become increasingly anachronistic,” Sack said. “There is no
historical support for stripping away the gun rights of non-dangerous users
of marijuana, and without any, the constitution says the ban must go.”

With respect to *Hemani*, in a separate August filing for the case, the
Justice Department also emphasized that “the question presented is the
subject of a multi-sided and growing circuit conflict.” In seeking the
court’s grant of cert, the solicitor general also noted that the defendant
is a joint American and Pakistani citizen with alleged ties to Iranian
entities hostile to the U.S., putting him the FBI’s radar.

Now that the Supreme Court has agreed to take up *Hemani*, if justices
declare 922(g)(3) constitutional, such a ruling could could mean government
wins in the remaining cases. The high court last month denied a petition
for cert in *U.S. v. Cooper*, while leaving pending decisions on *U.S. v.
Daniels* and *U.S. v. Sam*.

The court also recently denied a petition for cert in another gun and
marijuana case, *U.S. v. Baxter, *but that wasn’t especially surprising as
both DOJ and the defendants advised against further pursing the matter
after a lower court reinstated his conviction for being an unlawful user of
a controlled substance in possession of a firearm.

Meanwhile, in recent interviews with Marijuana Moment, several Republican
senators shared their views on the federal ban on gun possession by people
who use marijuana—with one saying that if alcohol drinkers can lawfully buy
and use firearms, the same standard should apply to cannabis consumers.

Separately, the U.S. Court of Appeals for the Tenth Circuit earlier this
year sided with a federal district court that dismissed an indictment
against Jared Michael Harrison, who was charged in Oklahoma in 2022 after
police discovered cannabis and a handgun in his vehicle during a traffic
stop.

The case has now been remanded to that lower court, which determined that
the current statute banning “unlawful” users of marijuana from possessing
firearms violates the Second Amendment of the Constitution.

The lower court largely based his initial decision on an interpretation of
a Supreme Court ruling in which the justices generally created a higher
standard for policies that seek to impose restrictions on gun rights.

Separately, in the U.S. Court of Appeals for the Eleventh District, judges
recently ruled in favor of medical cannabis patients who want to exercise
their Second Amendment rights to possess firearms.

As a recent report from the Congressional Research Service (CRS) explained
the current legal landscape, a growing number of federal courts are now
“finding constitutional problems in the application of at least some parts”
of the firearms prohibition.

In a recent ruling, a three-judge panel for the U.S. Court of Appeals for
the Eighth Circuit vacated a defendant’s conviction and remanded the case
back to a district court, noting that a retrial before a jury may be
necessary to determine whether cannabis in fact caused the defendant to be
dangerous or pose a credible threat to others.

The Third Circuit separately said in a published opinion that district
courts must make “individualized judgments” to determine whether 922(g)(3)
is constitutional as applied to particular defendants.

A federal court in October agreed to delay proceedings in a years-long
Florida-based case challenging the constitutionality of the ban on gun
ownership by people who use medical marijuana, with the Justice Department
arguing that the Supreme Court’s recent decision to take up *Hemani* warrants
a stay in the lower court.


*— Marijuana Moment is tracking hundreds of cannabis, psychedelics and drug
policy bills in state legislatures and Congress this year. Patreon
supporters pledging at least $25/month get access to our interactive maps,
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Earlier this year, 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.

A federal judge in El Paso separately 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.

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.

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.

The post DOJ Knew Gun Ban For Marijuana Users Is Vulnerable To ‘Litigation
Risk,’ Newly Revealed Memo Shows As Supreme Court Takes Up Issue appeared
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