GOP Senators Discuss Federal Ban On Marijuana Users Owning Guns As Supreme Court Considers Taking Up Issue

Several Republican senators are questioning 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.

In a series of interviews with Marijuana Moment, the GOP lawmakers
discussed the intersection of Second Amendment rights and drug policy as
the U.S. Supreme Court is considering taking up several pending cases on
the issue—which centers around a federal statute known as Section 922(g)(3)
that some say is inconsistent with conservative principles.

“Why would I have a problem with that any more than somebody who drinks
alcohol?” Sen. Thom Tillis (R-NC) said of cannabis consumers being able to
possess guns.

Sen. Dan Sullivan (R-AK) said that while he needs to “look into the
details” of the specific pending legal cases before the Supreme Court, he’s
“highly skeptical” of the ban, “given that marijuana is legal in my state,
and my state probably has the most gun owners of any state in the country.”

“A Second Amendment right can’t be trumped by a statute,” he said. “That’s
why it’s called a constitutional right.”

On the flip side, however, Sen. Ron Johnson (R-WI) said that he broadly has
a “problem with all this legalization of marijuana in general and using
cars,” suggesting that he believes cannabis reform is associated with
increased risk of traffic safety issues, despite conflicting evidence.

“Obviously you shouldn’t be using a firearm if you’re under the influence
of anything,” Johnson told Marijuana Moment.

To be clear, the several cases the high court justices were scheduled to
discuss at a closed-door meeting on Friday don’t concern whether people who
are actively intoxicated on marijuana or other substances should handle
firearms; they have to do with the law that bars anyone who is a user of
cannabis from even owning or purchasing a gun.

Sen. Cynthia Lummis (R-WY) gave a more nuanced response to the question
about the various cases pending before the Supreme Court on the issue,
stating that if she was in the justices’ position and wanted to “duck the
issue,” she’d take up one the Justice Department has prioritized that
involves cocaine as well as marijuana.

“But I haven’t heard anything about it,” she said. “I think it will be
revealing if they grant cert to one and not the other.”

Sullivan, for his part, said that for cannabis reformers, the case the
Trump administration is asking the justices to take up involving cocaine
“might not be the test case you want.”

Meanwhile, a man who was prosecuted after admitting to lying about his
marijuana use on a federal firearms purchasing form recently asked the
Supreme Court to take up the matter as the justices are actively
considering several other cases on cannabis consumers’ gun rights.

The new petition to the high court comes as the Justice Department is
separately asking it to dismiss one of multiple pending cases concerning
marijuana and gun rights, in large part because it expects the justices to
make a precedent-setting ruling on the issue.

In August, the Tenth Circuit ruled that the government must prove that people
who use marijuana “pose a risk of future danger” if it wants to justify
applying a law banning cannabis consumers from owning firearms.

The Justice Department appealed that ruling in 2023, sending it to the
Tenth Circuit. That three-judge panel said in a recent filing that they
“agree with much of the district court’s analysis” of the legal
considerations, including its challenge to the federal government’s claims
that there is historically analogous precedent substantiating the firearm
ban for cannabis consumers.

Part of DOJ’s argument was that the ban is historically consistent with
prohibitions on gun ownership by people with mental illness. The appeals
court said “the government cannot justify” the current policy based on that
standard.

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.

The ruling states that any such restrictions must be consistent with the
historical context of the Second Amendment’s original 1791 ratification.

The historical analogues that the Justice Department relied on to make the
case that the ban is consistent included references to antiquated case law
preventing Catholics, loyalists, slaves and Indians from having guns.

The circuit court, for its part, said that “the government must show
non-intoxicated marijuana users pose a risk of future danger” to support
the current policy. “This inquiry, which may involve fact finding, is best
suited for the district court.”

This opinion comes nearly a year after the Tenth Circuit heard oral
arguments in the case, with judges questioning not only the firearms
prohibition itself but also whether it was within the scope of the appeals
panel’s power to review the underlying lower court’s decision. Ultimately,
they determined that they did possess that authority.

Meanwhile, 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 July ruling, for instance, 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.

By contrast, the Third Circuit last month 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.

The appeals panel ruled that while a person “need not have harmed someone,
threatened harm, or otherwise acted dangerously to justify his
disarmament,” the history of gun laws in the country requires that
“district courts must make individualized judgments and conclude that
disarming a drug user is needed to address a risk that he would pose a
physical danger to others.”

Judges in that case noted that historical restrictions on gun ownership
under “drunkenness and lunacy laws” in the U.S. “were still always based on
an ‘individualized assessment’ rather than a categorical judgment.”

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.


*— 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,
charts and hearing calendar so they don’t miss any developments.*


*Learn more about our marijuana bill tracker and become a supporter on
Patreon to get access. —*

Meanwhile, at an 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.

Last year, then-President Joe 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 NRA’s 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’ 2nd
Amendment rights.

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.

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 2nd 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 LCB contributed reporting from Washington, D.C. *

The post GOP Senators Discuss Federal Ban On Marijuana Users Owning Guns As
Supreme Court Considers Taking Up Issue appeared first on Marijuana Moment.