Trump DOJ Notes ‘Significant Disagreement’ On Marijuana Consumer Gun Ban In New Supreme Court Filing

The Justice Department is telling the U.S. Supreme Court that “significant
disagreement” about the federal ban on gun possession by marijuana consumers
among numerous appeals courts has led to a situation where the justices
should step in and provide clarity for the country.

The comments came in a new filing in a case that DOJ is asking the Supreme
Court to reject due to recent procedural developments, though it wants the
justices to take up a separate case on the issue while holding on to others
for later action.

“In short, seven courts of appeals—the Third, Fifth, Sixth, Seventh,
Eighth, Tenth, and Eleventh Circuits— have recently issued decisions
concerning as-applied Second Amendment challenges to Section 922(g)(3),”
the filing says, referring to the federal law that precludes people from
owning firearms if they’re deemed to be an unlawful user of cannabis or
other illegal drugs, “and each court has resolved that challenge by
applying a somewhat different constitutional test.”

“Those decisions confirm that the question presented recurs frequently, has
generated significant disagreement in the courts of appeals, and warrants
this Court’s review,” U.S. Solicitor General D. John Sauer wrote in the
Monday brief.

The government’s filing in *U.S. v. Baxter* asks the justices to reject
that case, a stance also shared by lawyers for the respondent, Keshon
Daveon Baxter, whose conviction for being unlawful user of a controlled
substance in possession of a firearm was reinstated by a district court
after previously being remanded back from the U.S. Court of Appeals for the
Eighth Circuit.

“If the Eighth Circuit affirms that decision, the vacatur of petitioner’s
original conviction would be harmless,” Sauer’s filing says. “And if the
court reverses, the government could, if appropriate, file a new petition
for a writ of certiorari.”

For now, DOJ said the court should instead take up the separate case of *U.S.
v. Hemani, *which involves a person convicted of possessing a firearm while
using cannabis and cocaine and participating in illicit drug sales.

“In its reply brief in *Hemani*, the government explained that the question
presented had generated a multi-sided circuit conflict: The Seventh Circuit
had upheld Section 922(g)(3) in a decision that predated *NYSRPA v. Bruen*,
but the Third, Fifth, and Eighth Circuits, each applying different tests,
had issued decisions since *Bruen* concluding that the statute violates the
Second Amendment in many of its applications,” the brief says, referring to
a major 2022 case that struck down a New York gun control law. “Since then,
the Seventh Circuit has rejected the government’s contention that its pre-
*Bruen* decision upholding Section 922(g)(3) remains good law.”

“Taking a fresh look at the relevant history, however, the court determined
that ‘historical laws that kept guns out of the hands of the intoxicated
and the mentally ill are sufficiently analogous to § 922(g)(3)’s
proscription of firearms possession by active and persistent drug users,'”
the filing says. “Other courts of appeals, too, have issued decisions
concerning as-applied challenges to Section 922(g)(3).”

While arguing that justices should move forward with the Hemani case now,
DOJ said the court “should also hold other pending petitions concerning
as-applied challenges to Section 922(g)(3).”

“But the Court need not hold the petition in this case,” it said, referring
to the *Baxter* case.

With respect to the Justice Department’s commentary on the diverging
opinions among courts on the gun and cannabis issue, the U.S. Court of
Appeals for the Tenth Circuit last month 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 U.S. 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.

In the background of these developments, the U.S. Supreme Court is
considering a series of cases challenging the gun ban for people who use
marijuana.

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 opinion appears to differ from a recent Third Circuit ruling in that
the new decision says that not every application of 922(g)(3) “require[s]
an individualized factual determination,” explaining that such
determinations wouldn’t be necessary if the government could demonstrate
that a particular drug made an entire class of users dangerous.

By contrast, the Third Circuit recently 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.


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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.

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.

In a number of the ongoing cases, DOJ has argued that the prohibition on
gun ownership by marijuana users is also supported by the *Rahimi *decision 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 former 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 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.”

*Photo elements courtesy of rawpixel and Philip Steffan.*

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