Politics
Federal Court Upholds Gun Ban For Marijuana Users, But Requires ‘Individualized Judgments’ To Determine Dangerousness
A federal appeals court on Monday broadly upheld the nation’s ban on firearm possession by marijuana consumers but said that district courts must make “individualized judgments” to determine whether the law known as Section 922(g)(3) is constitutional as applied to particular defendants.
In the case, U.S. v. Harris, a three-judge panel of the U.S. Court of Appeals for the Third Circuit ruled that while a person “need not have harmed someone, threatened harm, or otherwise acted dangerously to justify his disarmament,” the history of gun laws in the country requires that “district courts must make individualized judgments and conclude that disarming a drug user is needed to address a risk that he would pose a physical danger to others.”
“Today, we hold that history and tradition justify §922(g)(3)’s restrictions on those who pose a special danger of misusing firearms because they frequently use drugs,” the opinion says. “But we lack enough facts to tell whether the law’s restrictions are constitutional as applied to Harris.”
The case, first filed in the Western District of Pennsylvania, involves defendant Erik Harris, who admitted that he had used marijuana and also purchased firearms after one of his guns went missing and was recovered by law enforcement. “Throughout the interview,” the Third Circuit ruling notes, “he gave different estimates of how often he had smoked in the past year. And he did not say how much or how often he had smoked in the weeks leading up to and during his possession of the three guns.”
Nevertheless, it adds, Harris “acknowledged being an ‘unlawful user’ of marijuana ‘because I do use it today.'”
The federal restriction on firearms by marijuana users “is not vague,” the court wrote; “it warned Harris that he could not possess guns while routinely smoking marijuana.”
At the same time, the ruling says, historical analogues to the law—including restrictions on gun ownership by “the dangerously drunk and dangerously mentally ill”—support its constitutionality specifically “as applied to those whose drug use would likely cause them to pose a physical danger to others if armed.”
Judges pointed out that historical restrictions on gun ownership under “drunkenness and lunacy laws…were still always based on an ‘individualized assessment’ rather than a categorical judgment.”
“If the standard for disarming drug users is dangerousness, and countless marijuana users are not dangerous, then not every marijuana user can be stripped of his gun rights.”
In remanding the case to the district court, the Third Circuit said “parties should have a chance to present their own evidence and arguments about how Harris’s drug use affected his mental state and riskiness,” offering a “non-exclusive list of factors”—such as the “length and recency” of cannabis use, “the drug’s half-life” and others—to “guide the District Court’s inquiry into the individual defendant’s use.”
“Future courts considering §922(g)(3) challenges,” the appeals court added, “should also consider these factors in determining whether someone’s drug use suggests that he “likely poses an increased risk of physical danger to others if armed.”
The new 27-page majority opinion was written by Circuit Judge Stephanos Bibas, appointed by President Donald Trump. The two other judges on the panel each submitted separate opinions on their own behalf.
Circuit Judge Cheryl Ann Krause, appointed by President Barack Obama, jointed the majority opinion in full and added “some observations about our Nation’s evolving—and conflicted—relationship with marijuana and how modern-day understanding may inform the application of § 922(g)(3) to habitual marijuana users.”
Marijuana use “impairs users’ judgment, decision-making, attention, and inhibition,” Krause wrote, pointing to studies she said “show that frequent marijuana use can prolong these consequences because smoking marijuana chronically causes THC, which gives marijuana its psychoactive properties, to build up in the blood, potentially contributing to longer-lasting cognitive effects.”
She wrote that the nation’s regulation’s around marijuana have shifted over time “with our developing uses of it and our understanding of its properties,” suggesting that district courts take into consideration “our evolving understanding of the effects of marijuana.”
“It was not until the early twentieth century that people began smoking marijuana recreationally,” Krause’s concurring opinion claims. It describes the federal restriction on gun ownership as among “the type of common-sense prophylactic judgment that the Second Amendment permits.”
Circuit Judge Thomas L. Ambro, appointed by President Bill Clinton, meanwhile, concurred in part with the majority opinion but also dissented in part.
“My colleagues correctly note that Harris may be disarmed if his marijuana use makes him a ‘credible threat to the physical safety of others with a gun,'” he said. “But they also obscure this conclusion with language that sets the threshold for potential dangerousness too low.”
He nevertheless agreed with the panel’s focus on the need for lower courts to evaluate each defendant’s possible danger to the community rather than focus on their mere status as a marijuana user.
“Categories are out. Individualized assessments are in,” Ambro wrote. “Today’s as-applied dangerousness inquiry is common sense: if the standard for disarming drug users is dangerousness, and countless marijuana users are not dangerous, then not every marijuana user can be stripped of his gun rights.”
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.
As a recent report from the Congressional Research Service 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.
The matter could 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, maintains. “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 Supreme Court filing, the 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.
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.
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.”
Read the full Third Circuit opinion in U.S. v. Harris below:
