Politics
Courts Grapple With ‘Constitutional Attacks’ On Law Barring Marijuana Users From Gun Ownership, Congressional Researchers Note
A new report from congressional researchers examines the state of law around a federal statute that prohibits gun possession by consumers of marijuana and other illegal drugs, noting that a growing number of federal courts are now “finding constitutional problems in the application of at least some parts” of the prohibition, known as Section 922(g)(3).
Given the evolving landscape, the Congressional Research Service (CRS) report says, Congress “may review Section 922(g)(3) and other federal firearms provisions to assess whether amendments may strengthen these laws or add clarity as to their application, or whether any such laws should be rescinded.”
The federal statute specifically prevents someone who is an “unlawful user” of an illegal drug from buying or possessing firearms. Courts in recent years have been divided on whether the federal government’s ban on gun ownership by cannabis users is lawful, especially when broadly applied.
Before a 2022 U.S. Supreme Court decision known as New York State Rifle & Pistol Association v. Bruen, “federal circuit courts uniformly upheld” the firearms restriction against legal challenges. But Bruen did away with a two-step test to evaluate a Second Amendment challenge, replacing it with what the new CRS report calls “a history-centered framework” in which “the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.”
Then, in 2024, the Supreme Court issued a ruling in U.S. v. Rahimi, a case having to do with firearm possession among people subject to domestic violence restraining orders. Justices subsequently remanded a number of pending cases back to lower courts for reconsideration, including U.S. v. Daniels, which centers on the federal gun prohibition for cannabis consumers.
When the Daniels case was first heard by the U.S. Court of Appeals for the Fifth Circuit, judges declared the gun restriction unconstitutional. After the Supreme Court remanded the case back to the Fifth Circuit, the appeals court in a January opinion again took issue with the statute, explaining that while 922(g)(3) wasn’t unconstitutional on its face, it was unconstitutional as applied to a defendant who was only an occasional cannabis user.
“[T]he government’s burden of proof was too low, as it was not required to convince a jury that Daniels was presently or even regularly intoxicated at the time of arrest,” the court said. “And even if the government had persuaded the jury that Daniels was frequently intoxicated, here…the government offers no Founding-era law or practice of disarming ordinary citizens ‘even if their intoxication was routine.’”
The Department of Justice “has not pointed to sufficiently analogous historical laws to establish why Daniels himself should be considered presumptively dangerous,” the opinion continued, noting that jury instructions at the defendant’s trial “left open the possibility that Daniels had not even unlawfully used a controlled substance in several weeks.”
The new CRS report describes Daniels as “one of the few appellate cases holding an existing federal firearm law to be unconstitutional at least as applied to a particular defendant.”
“On remand, the Fifth Circuit reached the same conclusion as it had previously,” it says. Citing another Fifth Circuit decision, U.S. v. Connelly—which opined that “there is a substantial difference between an actively intoxicated person and an ‘unlawful user’ under § 922(g)(3)”—the court ruled that a jury instruction in Daniels lacked was too “nebulous.”
The ruling said that “the jury could have found Daniels guilty even while believing that he had not used marihuana for several weeks,” adding that “Daniels was convicted for exactly the type of ‘habitual or occasional drug use’ that we said, in Connelly, could not support an indictment (let alone a conviction).”
Given changes in legal precedent since Braun, the CRS report concludes, “courts are grappling with the renewed constitutional attacks to firearms laws and regulations, including the categorical restrictions in 18 U.S.C. § 922(g).”
“Daniels,” it says, “demonstrates that lower courts post-Rahimi are finding constitutional problems in the application of at least some parts of Section 922(g).”
The CRS report says in a “Considerations for Congress” section that lawmakers “may review Section 922(g) and other federal firearms provisions to assess whether amendments may strengthen these laws or add clarity as to their application, or whether any such laws should be rescinded.”
“Congress may also consider the framework set forth in Bruen as it crafts and considers new firearms legislation,” it says.
Separately in Pennsylvania earlier this month, a federal district judge dismissed a lawsuit challenging firearm ban, ruling that the prohibition is constitutional and that patients can avoid legal jeopardy “by simply choosing an alternative treatment.”
“Plaintiffs have no constitutional right to use marijuana—medical or otherwise, and there are no allegations that medical marijuana is the only available treatment for their medical conditions,” U.S. District Judge Cathy Bissoon, an Obama appointee, wrote in the ruling.
That suit was filed in January of last year by Warren County District Attorney Robert Greene, who is a registered medical cannabis patient in the state, and with the Second Amendment Foundation (SAF), which advocates for gun rights.
Unlike some other recent federal court rulings around the constitutionality of the restriction—such as in the U.S. Court of Appeals for the Fifth and Eighth Circuits—the district court dismissal maintained that the law is sufficiently similar to other historical government limits on the Second Amendment, such as preventing firearm possession by intoxicated people and individuals with mental illness.
“After careful consideration, the Court agrees that the Government has shown that Sections 922(g)(3) and (d)(3) are ‘relevantly similar’ to historical regulations aimed at preventing potentially dangerous persons from possessing and using firearms, including the mentally ill and the intoxicated,” the June 30 ruling says. “Although the Court of Appeals for the Third Circuit has not yet addressed directly the provisions challenged here, this finding is consistent with the overwhelming weight of authority upholding the facial constitutionality of Sections 922(g)(3) and/or (d)(3) and related regulations.”
Bissoon’s ruling dismisses the suit with prejudice, meaning the case is now closed and cannot be amended and refiled. “Because the Court’s decision rests primarily on legal conclusions and not on insufficient factual allegations,” it says, “it finds that further amendment would be futile.”
CRS points out in the new report that the Department of Justice “has not sought Supreme Court review of the Fifth Circuit’s opinion in Daniels following remand.”
The matter could nevertheless soon be taken up by the U.S. Supreme Court. In a recent petition for review by justices, U.S. Solicitor General D. John Sauer argued 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 filing in that 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.”
The federal statute “bars their possession of firearms only temporarily,” the government petition says, “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 mentioned “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 the plaintiff in the case 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.
The Fifth Circuit’s Daniels ruling—in a three-judge panel ruled that the firearms ban was unconstitutional as applied—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.
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 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.”
