Politics
Federal Appeals Court Hears Challenge To Gun Ban For Marijuana Consumers
As courts around the country grapple with challenges to the government’s ban on marijuana users owning firearms, judges on a federal appeals panel are considering the Justice Department’s move to overturn a district court ruling last year that deemed the gun ban unconstitutional.
A panel of judges on the U.S. Court of Appeals for the Tenth Circuit heard oral arguments last week in the case, questioning not only the firearms prohibition itself but also whether it’s within the scope of the appeals panel’s power to review the underlying lower court’s decision.
The appeal follows a district court’s dismissal of 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 ruling said the statute banning “unlawful” users of marijuana from possessing firearms—U.S.C. §922(g)(3)—violates the Second Amendment of the Constitution.
Government lawyers have argued in appellate briefs that the ban on gun ownership by cannabis users is supported by historical precedent, comparing the restriction to disarmament of the Catholics and loyalists during the American Revolution as well as the mentally ill.
“Guns and drugs are a dangerous combination,” they said in an appellate brief last year. “That is why Congress placed unlawful drug users alongside felons and the mentally ill when it restricted their access to guns and later disarmed them. Congress viewed those classes as presumptively risky people, i.e. those who may not be trusted to possess a firearm without becoming a threat to society.”
“Disarming drug abusers is consistent with this Nation’s historical tradition of disarming those believed to be more dangerous than ordinary, law-abiding citizens and akin to disarming the mentally ill,” it continues. “The district court erred when it reached the opposite conclusion.”
At oral argument, one judge noted that the analogy seemed to ignore the issue of alcohol.
“When you talk about alcohol and alcoholics, doesn’t the whole theory break down?” the judge said. “If a recovering drunk can carry a gun, why can’t a non-intoxicated marijuana user carry a gun?”
The same judge joked earlier in the hearing about what it meant to be “an unlawful user” of marijuana.
“In New Mexico and Colorado, I almost get high walking down the street,” he said.
Much of the discussion at oral argument surrounded the standard of review in the case and whether the underlying dispute was a facial challenge to the gun ban or an as-applied challenge. Judges also zeroed in on what could be a sticking point going forward around whether or not Harrison was under the influence of marijuana when in possession of the firearm.
Judge Veronica S. Rossman noted that the district court seemed to acknowledge that Harrison was not intoxicated at the time.
“The fact of Mr. Harrison’s non-intoxication seems to be an undisputed fact in this case,” she said. On appeal, she explained, “typically we’re confined to the four corners of the indictment, which here is charged as marijuana use.”
The Department of Justice (DOJ) lawyer arguing on the government’s behalf said the issue of intoxication didn’t come up earlier in the case because the gun-prohibition law doesn’t center on whether someone is intoxicated, only whether they’re an “unlawful user” of illegal substances.
Rossman also noted, however, that during the district court case, DOJ argued case that even non-intoxicated marijuana users are disproportionately violent. “The district court disregarded all of that,” she said. “Isn’t that an error that is correctable here on remand?”
The attorney for Harrison, meanwhile, argued that the prohibition on gun ownership by cannabis users is overbroad and is “untethered to any sort of limiting principle.”
One of the judges to the government: "What's an unlawful user of marijuana? In New Mexico and Colorado, I almost get high walking down the street." https://t.co/aPfE3tDBq2
— Firearms Policy Coalition (@gunpolicy) November 25, 2024
Regarding past disarmament laws around Catholics and loyalists, she said the Second Amendment was “an answer to that.”
Judges did not indicate during oral argument how they plan to rule on the dispute, instead taking the matter under submission.
In a separate federal court case, DOJ lawyers made similar arguments earlier this month that the ongoing firearm restriction for cannabis users is “analogous to laws disarming the intoxicated” and other historical laws “disarming many disparate groups that the government believed presented a danger with firearms.”
That brief was the latest in a case filed by a Pennsylvania prosecutor suing the federal government over its ban on gun ownership by cannabis users. It came two weeks after lawyers for the official, Warren County District Attorney Robert Greene, asked the U.S. District Court for the Western District of Pennsylvania to allow the matter to proceed to trial.
In the plaintiffs’ earlier brief, attorneys for Greene and others argued that the firearm prohibition for cannabis users is distinct from other laws prohibiting gun ownership by potentially dangerous individuals, noting that the other restrictions “only permitted the deprivation of one’s Second Amendment rights after a hearing, providing for due process, and then, only temporarily.”
While the government has framed its marijuana gun ban as similarly temporary, plaintiffs said that in practice the prohibition is much broader.
“While the Government disingenuously contends throughout its brief that the challenged regulations only ‘impose a temporary prohibition on firearms possession and receipt during the time period that a person is actively engaged in unlawful drug use,’” the plaintiffs’ last brief said, “the truth of the matter, which the Government elects not to disclose to this Court, is that…an unlawful user includes those ‘even though the substance is not being used at the precise time the person seeks to acquire a firearm or receives or possesses a firearm.’”
Lawyers in a separate federal appeals court case also faced off last month over when the government may lawfully disarm someone for using marijuana, with DOJ arguing in that dispute that a person’s recent use of the drug is indeed sufficient to establish that they’re in violation of the law and should not legally be able to possess a gun.
Judges on the U.S. Court of Appeals for the Fifth Circuit, however, pushed back on the government’s position, noting at oral argument that a recently published opinion within the same judicial circuit held that while “some limits on a presently intoxicated person’s right to carry a weapon” may be constitutional, “disarming a sober person based on past substance usage” is not.
That case, U.S. v. Daniels, was set to be considered by the U.S. Supreme Court earlier this year but was among a number of firearms-related cases remanded back to lower courts following a separate Supreme Court decision about firearms and domestic violence.
A Fifth Circuit panel previously ruled in favor of the individual in the case, who faced a conviction after admitting to having used cannabis while in possession of a gun. The court said the federal statute known as Section 922(g)(3), which prevents someone who is an “unlawful user” of an illegal drug from buying or possessing firearms, was 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 similar arguments 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.
The Biden administration, meanwhile, argues 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.”
The Justice Department 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.
Last year, 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.
Earlier this year, President Joe 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.
Meanwhile, some states have passed their own laws either further restricting or attempting to preserve gun rights as they relate to marijuana. Recently, for example, 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.
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