Letting Marijuana Users Have Guns Poses ‘A Clear Danger,’...

In a recent filing with the U.S. Supreme Court, the Trump-led Department of
Justice (DOJ) is doubling down on arguments made under former President Joe
Biden that users of illegal drugs—including marijuana—”pose a clear danger
of misusing firearms.”

That risk, DOJ contends, justifies the longstanding federal prohibition on
gun ownership by drug consumers—known as Section 922(g)(3)—despite the
Constitution’s broad Second Amendment protections.

In a petition for review by the high court, U.S. Solicitor General D. John
Sauer argues 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
June 2 filing in the 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.”

Some lower courts have said the government’s blanket ban on gun and
ammunition possession infringes on the Second Amendment—at least as applied
to certain individual cases—because there’s no historical justification for
such a broad restriction on an entire category of people.

But in the appeal petition in *Hemani, *Trump’s solicitor general said the
ban is necessary and narrowly tailored enough to survive the legal
challenge.

The federal statute “bars their possession of firearms only temporarily 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 mentions “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 Hemani’s lawyers 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.

In another case earlier this year, a Fifth Circuit panel ruled that the
firearms ban was unconstitutional as applied to least one defendant. That
ruling 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.

Much of the panel’s discussion at oral argument in that case surrounded
whether the underlying dispute was a facial challenge to the gun ban or an
as-applied challenge. And, as in other cases, judges zeroed in on whether
or not that defendant was actually under the influence of marijuana while
in possession of a firearm.

In a separate federal court case, Department of Justice (DOJ) lawyers
recently made arguments that the ongoing firearm restriction for cannabis
users is “analogous to laws disarming the intoxicated” and other historical
laws “disarming many disparate groups that the government believed
presented a danger with firearms.”

That brief was the latest response to a case filed by a Pennsylvania
prosecutor who’s suing the federal government over its ban on gun ownership
by cannabis users. It came two weeks after lawyers for the official, Warren
County District Attorney Robert Greene, asked the U.S. District Court for
the Western District of Pennsylvania to allow the matter to proceed to trial
.

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, for example, 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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The post Letting Marijuana Users Have Guns Poses ‘A Clear Danger,’ Trump’s
Solicitor General Tells Supreme Court appeared first on Marijuana Moment.