Politics
DOJ Tells Supreme Court That Federal Gun Ban For Marijuana Users Must Be Upheld—Even If Trump’s Rescheduling Order Is Finalized
The Justice Department is urging the U.S. Supreme Court to uphold the constitutionality of a federal law preventing marijuana users from legally owning or possessing guns—insisting that, even if cannabis is rescheduled under an executive order issued by President Donald Trump, its use makes people uniquely dangerous and deserving of disarmament.
In a reply brief in the pending case, U.S. vs. Hemani, DOJ reiterated its prior arguments defending the federal statute Section 922(g)(3), maintaining that there are sufficient historical analogues consistent with the nation’s founding that justify barring cannabis consumers from having firearms. To that end, Trump-appointed U.S. Solicitor General D. John Sauer said justices should reverse an appeals court ruling that found the ban violates the Second Amendment.
“For decades—including when respondent violated Section 922(g)(3)—marijuana has been a Schedule I drug based on determinations that, inter alia, ‘marijuana had a high potential for abuse’ and lacks ‘accepted safety,'” Sauer said.
“The federal government is currently taking steps to reschedule marijuana under Schedule III to facilitate medical marijuana and CBD research ‘while preserving the Congress’s intent to restrict the sale of products that pose serious health risks,'” he acknowledged, while adding that the rulemaking process “is not yet complete.”
To be sure, it’s been about two months since Trump signed an executive order directing Attorney General Pam Bondi to expeditiously finalize the process of moving marijuana from Schedule I to Schedule III of the Controlled Substances Act (CSA). The Justice Department told Marijuana Moment last month that it had no updates or comment on the status of the rulemaking.
“Respondent also urges that even if habitual users of other drugs could be deemed categorically dangerous, marijuana is too ubiquitous,” DOJ said in its latest brief. “But millions of Americans also regularly abuse opioids and cocaine. Whether marijuana is properly scheduled and how dangerous it is are questions the Controlled Substances Act leaves to the Executive Branch.”
In a footnote, the department also stressed that cannabis “remains a Schedule I drug, subject to the Controlled Substance Act’s most stringent restrictions.”
“That future rescheduling does not affect respondent’s constitutional defense against his conviction for a past offense,” it said. “Regardless, Schedule III classification reflects that a drug ‘has a potential for abuse,’ albeit ‘less than’ Schedules I and II, and that its abuse ‘may lead to moderate or low physical dependence or high psychological dependence.'”
The filing was submitted weeks after a series of cannabis and gun rights groups, including the National Rifle Association (NRA), filed amici briefs with the Supreme Court, urging it to pass final judgement that deems the federal firearms ban for cannabis users unconstitutional.
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.
ACLU attorneys representing Hemani have consistently 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 fto Schedule III of the CSA.
The Supreme Court is scheduled to hear oral arguments in the Hemani 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.
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.
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.
In any case, in Baxter, the department last week submitted a filing defending the federal gun ban for marijuana users—in part by drawing a contrast between those affiliated with gangs and a hypothetical “frail and elderly grandmother” who uses medical cannabis.
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.
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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.
