Supreme Court Should Uphold Gun Ban For Marijuana Users, 19 State AGs Tell Justices

Attorneys general for 19 states and Washington, D.C. are siding with the
federal government in a U.S. Supreme Court case that could decide the fate
of a law preventing marijuana users from buying or possessing firearms.

In an amicus brief for the case *U.S. v. Hemani* that was submitted to the
court on Friday, the top state prosecutors—led by Illinois Attorney General
Kwame Raoul (D)—said justices should maintain the current statute known as
18 U.S.C. § 922(g)(3).

That law has been challenged in multiple federal courts in recent years,
but the Supreme Court agreed to take up *Hemani*, a case that led a lower
court to rule that the federal prohibition on gun ownership by people who
use cannabis violates the Second Amendment of the U.S. Constitution.

“I am urging the Supreme Court to reverse the appellate court’s decision
because the mix of habitual drug use and firearms poses recognized public
safety risks,” Raoul said in a press release. “Allowing habitual drug users
to carry or use firearms significantly increases danger to our communities.”

“I am proud to lead this bipartisan coalition, as we all agreed we need to
work together to protect our states and communities from gun violence,” he
said.

In the brief, the attorneys general—most of which represent states that
have enacted adult-use legalization within their borders—said they have a
“substantial interest in the health, safety, and welfare of their
communities, which includes preventing firearms from coming into the hands
of people likely to misuse them.”

“That interest is implicated by this case, which addresses the extent to
which the federal government may prohibit an individual who is an ‘unlawful
user of or addicted to any controlled substance’ from possessing firearms,”
they said.

The brief doesn’t focus singularly on the marijuana and gun issue, which
can be partly explained by the fact that the defendant in the case was not
only a cannabis consumer but also a user of cocaine who’s sold drugs in the
past, according to court findings. But the impact of a ruling would likely
have substantial implications for marijuana consumers and patients.

The reasoning that other courts have used to deem the firearm ban
unconstitutional is “flawed in multiple respects,” the attorneys general
said, “including that it misdescribes the scope of the relevant historical
tradition, misapplies this Court’s precedents, and unduly ties the hands of
legislatures seeking to protect the public from the full range of dangers
associated with combining firearms and drugs.”

While the district court in *Hemani *argued that gun statutes should
distinguish between people who are actively impaired from controlled
substances and drug users who don’t possess guns while intoxicated, the
latter group, the brief says that “habitual drug use can cause some
individuals to experience chronic psychological disturbances that affect
their conduct and decision-making in a manner that compromises their
ability to safely handle firearms.”

“Further, because much drug use is illicit, habitual drug users frequently
interact with the illegal drug trade, which is inherently dangerous,” it
says.

The brief cites a related case, *U.S. v. Harris*, where a regular cannabis
user lost his gun after becoming intoxicated and the weapon ended up in the
hands of a felon who was prohibited from possessing firearms.

“In short, amici States have a substantial interest in retaining the
flexibility to address new societal concerns with appropriately tailored
firearms regulations that are consistent with the principles underlying
this country’s historical tradition. Section 922(g)(3), as well as its
state counterparts, respect that balance.”

Crime trends across the country show that the “altered mental states caused
by these and other drugs can be dangerous when combined with firearms, even
when an individual user does not necessarily intend violence or harm or
even fire the weapon,” the state officials said.

Other signatories of the amicus brief include the attorneys general of
California, Colorado, Connecticut, Delaware, Hawaii, Maine, Maryland,
Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New York, Ohio,
Oregon, Rhode Island, Vermont, Washington State and Washington, D.C.

Notably, all of those states have legalized adult-use marijuana, with the
exception of Hawaii, where only medical cannabis is legal.

“Drugs and guns are a dangerous combination,” California Attorney General
Rob Bonta (D) said. “Potentially dangerous drug users should not possess
firearms—this is a commonsense notion to prevent people who use drugs from
harming themselves, their loved ones, or their communities.”

“Both red and blue states alike—recognizing the dangers posed by combining
habitual drug use with firearms—have imposed firearm restrictions to
prevent gun violence,” he said, adding that justices should “reverse a
lower court decision, uphold public safety, and keep firearms out of the
reach of people who are drug users.”

Several other briefs were also submitted on Friday to justices in the case,
which was granted cert last month. 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 week, 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.

The latests amicus briefs were filed just one day after President Donald
Trump signed an executive order directing U.S. Attorney General Pam Bondi
to expeditiously complete a rulemaking process to move marijuana from
Schedule I to Schedule III of the Controlled Substances Act (CSA). It’s
uncertain to what extent, if at all, the modest policy change would impact
the pending gun cases.

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.

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.

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.


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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.

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AGs Tell Justices appeared first on Marijuana Moment.