NRA Joins Marijuana Groups Urging Supreme Court To Overturn Ban On Gun Ownership By Cannabis Consumers As Unconstitutional

The National Rifle Association (NRA)–arguably the most influential gun
rights lobbying group in the U.S.—has joined top drug policy reform
organizations and other interests in urging the U.S. Supreme Court to declare
the federal ban on gun ownership by marijuana consumers unconstitutional.

In one of the latest amici briefs to be filed ahead of oral arguments in a
case before the court, *U.S. vs. Hemani*, NRA called on justices to uphold
a lower court ruling that found the federal statute known as 18 U.S.C. §
922(g)(3) violates the Second Amendment.

The filing came amid other new filings from leading reform groups NORML and
the Drug Policy Alliance (DPA).

Central to the arguments from NRA and the drug policy organizations is
that, based on separate Supreme Court precedent on gun restrictions,
barring marijuana users from buying or possessing firearms lacks historical
analogues consistent with the nation’s founding and is inconsistent with
the increasing social acceptance of marijuana as states continue to
legalize if for medical or recreational purposes.

“To justify firearms prohibition for marijuana users when they are not
intoxicated, the government must prove that the ban is consistent with our
nation’s historical tradition of firearm regulation,” NRA said. “That
tradition supports restrictions on the use of firearms while intoxicated,
but it does not support disarming individuals when they are sober merely
because they sometimes use intoxicants.”

“Throughout American history, legislatures recognized that intoxication
could temporarily increase the danger of firearms misuse. But they did not
respond by entirely disarming people based on their status as users,” the
brief filed alongside other Second Amendment groups said. “Instead,
historical intoxication laws regulated conduct: restricting the carrying,
discharge, or purchase of firearms only while a person was intoxicated and
only for as long as that condition lasted. The historical record thus
reflects a consistent tradition of narrow, situational restrictions rather
than categorical disarmament.”

“Bereft of relevant support, the government elides the historical tradition
of ‘firearm regulation,’ and instead offers strained analogies to
civil-commitment laws for alcoholics who could not manage their affairs and
to vagrancy laws that detained people in forced labor for loafing,
juggling, or wearing the clothes of the opposite sex,” the brief states.
“The government also cites surety laws, but those laws undermine its case
because they required an individualized judicial finding of dangerousness.”

“Besides contradicting the specific American historical tradition about
regulating firearms and intoxicants, the prosecution of Hemani for
marijuana use violates a broader rule: individual disarmament must be based
on dangerousness. Yet the government has made no serious effort to
establish a connection between marijuana use and dangerousness. Rather than
focusing on marijuana, it discusses drugs in the abstract and relies
primarily on violent incidents involving methamphetamine, heroin,
tranquilizers, quaaludes, and PCP.”

“This Court should hold 18 U.S.C. § 922(g)(3) unconstitutional as applied
to Hemani because the government failed to demonstrate that disarming him
based on marijuana use is consistent with the nation’s historical tradition
of firearm regulation,” NRA concluded. “The judgment below should be
affirmed.”

Relatedly, last year NRA’s lobbying arm said that court decisions calling
into question the constitutionality of the federal government’s ban on gun
ownership by marijuana consumers had “led to a confusing regulatory
landscape” that’s impacted Americans’ Second Amendment rights.

NORML, for its part, said in its brief on the current case that the Second
Amendment “protects ‘the right of the people to keep and bear Arms,'” and
cannabis consumers “are plainly among ‘the people’ to be afforded its
protection.”

“They are not aliens, enemy combatants, or some constitutionally excluded
caste,” it says. “They are ordinary citizens and residents, many of them
veterans, workers, parents, and medical patients, who happen also to
consume a plant that Congress still places in Schedule I, but partially
protects and promotes in interstate commerce by means of spending
appropriations measures.”

Justice determined in an earlier ruling that gun laws must be rooted in
historical precedent going back to the founding principles enshrined in the
U.S. Constitution. And both NORML and DPA seized on that point in their
respective briefs.

“The closest historical analogues concern temporary restrictions on
carrying or firing a weapon while actually intoxicated,” NORML said. “Those
laws did not impose a continuing disability on persons who drank alcohol or
used other intoxicants, and they certainly did not strip those persons of
their right to possess arms in their homes.”

The organization went further, noting that cannabis itself “underscores the
historical mismatch at the heart of this case.”

“Hemp was a familiar and ubiquitous commodity from the colonial period
through Reconstruction: colonial governments affirmatively promoted—and in
Virginia required—its cultivation; members of the Founding generation grew
it; and by the nineteenth century cannabis preparations were widely used
medicinally and recognized in standard pharmaceutical compendia,” it said.
“Yet neither the Founding era nor Reconstruction produced any tradition of
disarming cannabis users as a class, or treating mere cannabis use as a
proxy for dangerousness sufficient to justify categorical deprivation of
the right to keep and bear arms.”

Additionally, NORML said modern policy “underscores the irrationality of
applying § 922(g)(3) categorically to cannabis users, as a “substantial
majority of States now authorize the medical use of cannabis, and many also
permit adult-use possession under comprehensive regulatory regimes.”

“These widespread legislative judgments reflect the reality that cannabis
use is both common and socially normalized, rather than a marker of
dangerousness sufficient to justify the permanent deprivation of a
fundamental constitutional right,” it said. “Congress itself has repeatedly
reinforced that accommodation by prohibiting the Department of Justice from
using appropriated funds to interfere with States’ implementation of
medical-cannabis laws.”

“Historically, going back 400 years, cannabis in and of itself has not been
viewed a harmful plant or a threat,” it continued. “Only since the 1930s
and beyond with its Schedule I designation under the Controlled Substances
Act of 1970 has it been so relegated–which has been acknowledged as being
for political reasons.”

“Cannabis users are among ‘the people’ whose right to keep and bear arms
the Second Amendment protects. For centuries, Americans cultivated,
consumed, and prescribed cannabis without any suggestion that doing so
warranted the loss of firearms rights. State-authorized medical cannabis
patients continue to do so today, under regimes Congress has repeatedly
chosen to protect. The historical analogues the government identifies
concern temporary restrictions on carrying or discharging weapons while
actively intoxicated, or disarmament of persons adjudged dangerous—not
blanket bans on all users of a disfavored substance. Section 922(g)(3), as
applied here, is a modern, statusbased firearm prohibition of unprecedented
breadth. It is not consistent with this Nation’s historical tradition of
firearm regulation.”

DPA, for its part, said in a brief that the Constitution’s “prohibition on
vague laws protects the separation of powers by ensuring that Congress,
rather than police, prosecutors, or judges, defines what conduct is
criminal.”

“It also protects ordinary people by requiring a criminal law to be
sufficiently definite to provide notice of what the law prohibits,” it
said. “The statute at issue here, 18 U.S.C. § 922(g)(3) (the Statute),
violates this precept because it prohibits an ‘unlawful user’ of ‘any
controlled substance’ from possessing a firearm, without defining the
quantity, frequency, or timing of the use that triggers its application.”

“The Government disagrees. It reasons that, if this Court reads certain
terms into the Statute, then that modified version of § 922(g)(3) is not
unconstitutionally vague, as applied to Mr. Hemani,” it said. “It argues,
without relevant authority, that the Statute operates as a “temporary”
disarmament that reaches only ‘habitual’ drug users. The Government’s
interpretation does not remotely reflect the Statute’s capacious reach.”

“In our constitutional order, a vague law is no law at all. Congress is the
only branch that has the power to enact federal criminal laws. Allowing
this prosecution to proceed under § 922(g)(3) as applied here would require
this Court to supply the limiting principle Congress omitted and to decide
when the Statute applies and to whom. That approach only furthers the
inequitable, selective criminalization of drug use. It has little, if
anything, to do with regulating firearms. This Court should affirm.”

Further, the statute that’s being contested holds “the potential to ensnare
tens of millions of Americans. The potential consequences are dire: A gun
owner with no prior criminal history who experiments with marijuana can
suddenly—without any individualized determination of dangerousness—be
stripped of their constitutional right to possess a firearm, be subject to
felony penalties and, depending on their domicile, be prohibited from
voting in elections due to the collateral consequences of a felony
conviction.”

“In a nation where marijuana consumption is as common as alcohol use, it
cannot be the law that any American who uses marijuana forfeits their
constitutional right to firearm possession,” the brief states, adding that
the “Government attempts to defend § 922(g)(3) by implicitly relying on the
assumption that drug use meaningfully correlates with dangerousness. Those
claims are not supported by sound data.”

“Whatever its policy aims, § 922(g)(3) does not condition criminal
liability on any finding of dangerousness, impairment, or misuse of a
firearm,” it said. “The Government’s attempt to justify the Statute by
reference to generalized correlations asks this Court to supply limiting
principles that Congress did not enact. This Court’s vagueness doctrine
forbids that exercise.”

“The notion that a person may be vaguely labeled as an ‘unlawful user’ and
subsequently deprived of a fundamental liberty is irrational. Nor is it
rooted in any equitable historical tradition of the United States,” the
brief concludes. “The Statute operates as an unbounded, indiscriminate
deprivation of fundamental liberties and should not be tolerated.”

In addition to NORML and DPA, several gun rights groups joined the chorus
with their own amici briefs opposing the firearm ban for cannabis consumers
this week.

In an amicus brief filed with the Supreme Court on Thursday, the Second
Amendment Foundation (SAF), California Rifle and Pistol Association (CRPA),
Second Amendment Law Center (2ALC), Citizens Committee for the Right to
Keep and Bear Arms and Minnesota Gun Owners Caucus (MGOC) identified a
number of legal issues with the underlying federal statute, 18 U.S.C. §
922(g)(3).

Because the court selected *U.S. vs. Hemani* instead of other more
marijuana-specific cases challenging the constitutionality of the federal
ban, the amici called it an “exceptionally poor vehicle to decide such an
important question.”

More recently, the Firearms Policy Coalition, National Association for Gun
Rights and New York State Rifle & Pistol Association submitted briefs in
the case. Also, the National Association of Criminal Defense Lawyer (NACDL)
and Center for Human Liberty filed briefs urging the court to find the
current ban unconstitutional.

All of these amici briefs were filed days after ACLU attorneys representing
Hemani made the case that the federal ban on gun ownership by marijuana
consumers is nonsensical and unconstitutional—and that it’s made all the
more confounding by the fact that Trump directed the expeditious
finalization of a rule to move cannabis from Schedule I to Schedule III of
the Controlled Substances Act (CSA).

The Supreme Court is scheduled to hear oral arguments in the *Hermani* proceedings
on March 2.

In the background, the Bureau of Alcohol, Tobacco, Firearms, and Explosives
(ATF) recently moved to loosen rules that bar people who consume marijuana
and other illegal drugs from being able to lawfully purchase and possess
guns by making it so fewer people would be affected.

The interim final rule from ATF seeks to update the definition of “unlawful
user of or addicted to any controlled substance” under an existing policy
that has been interpreted to deny Second Amendment rights to people who
have used illegal substances a single time within the past year.

Last month, meanwhile, attorneys general for 19 states and Washington, D.C.
filed their own brief siding with the federal government in the *Hemani* case,
insisting that justices should maintain the current § 922(g)(3) statute.

Several other briefs were also submitted last month for the case, which was
granted cert in October. Firearm control groups including Everytown for Gun
Safety, Second Amendment Law Scholars, Brady Center to Prevent Gun
Violence, Giffords Law Center to Prevent Gun Violence and Global Action on
Gun Violence have told the Supreme Court to overturn the lower court’s
ruling in the matter, for example. A coalition of history and law
professors also submitted a brief.

Also last month, Smart Approaches to Marijuana (SAM) and 21 other
prohibitionist groups filed a brief, urging justices to uphold the
constitutionality of the federal gun ban for people who use cannabis—which
they claim is associated with violence and psychosis.

U.S. Solicitor General D. John Sauer, for his part, told the Supreme Court
that people who use illegal drugs “pose a greater danger” than those who
drink alcohol.

Meanwhile, 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
recently 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 Supreme Court takes on a case challenging the
constitutionality of the current federal gun statute.

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.

If justices declare 922(g)(3) constitutional, such a ruling could could
mean government wins in the remaining cases. The high court recently 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 last 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.

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 another 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,
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. —*

Last 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 in 2024 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 last year 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.

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Gun Ownership By Cannabis Consumers As Unconstitutional appeared first on Marijuana
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