Politics
Trump DOJ Asks Supreme Court To Uphold Ban On Marijuana Users Owning Guns
Amid a series of legal challenges, the Trump administration is asking the U.S. Supreme Court to take up a case on the federal government’s ban on users of marijuana and other illegal drugs from owning firearms and uphold the prohibition, saying it is consistent with the 2nd Amendment.
To that end, the DOJ solicitor general is urging SCOTUS to hear one of five relevant cases to resolve conflicting lower court decisions on gun rights for cannabis consumers.
With the multiple competing legal cases resulting in differing rulings in federal appeals courts across the country, DOJ last week requested that SCOTUS review one in particular that it described as “archetypal” of the issue related to federal code 922(g)(3), which precludes users of unlawful drugs from having guns or ammo.
The case “presents an important Second Amendment issue that affects hundreds of prosecutions every year: whether the government may disarm individuals who habitually use unlawful drugs but are not necessarily under the influence while possessing a firearm,” U.S. Solicitor General D. John Sauer, an appointee of President Donald Trump, said.
The solicitor general reiterated his position that, despite recent appeals court decisions calling into question the constitutionality of the firearms ban for people who use cannabis—even in compliance with state law—the restriction is nevertheless lawful.
Some lower courts have said the government’s blanket ban on gun and ammunition possession infringes on the Second Amendment—at least as applied to certain individual cases—because there’s no historical justification for such a broad restriction on an entire category of people.
But over recent years, various federal district and appeals courts have take differing approaches to the issue. As DOJ argued in its latest filing in the case, “the question presented is the subject of a multi-sided and growing circuit conflict.”
“The petition for a writ of certiorari [filed by Sauer in June] identified three sides of that conflict: The Seventh Circuit has upheld Section 922(g)(3); the Eighth Circuit has held it violates the Second Amendment unless the government can make a case-by-case showing justifying the drug user’s disarmament; and the Fifth Circuit has held that it generally violates the Second Amendment unless the drug user was intoxicated while possessing the firearm.”
“Since then, the conflict has deepened,” it said, referring to several other cases on the issue that are pending before the high court. And DOJ wants SCOTUS to focus on one case in particular to resolve what it called a “four-way circuit conflict”: U.S. v. Hemani.
One reason DOJ could be focused on the justices taking up Hemani in particular is that the defendant in that case is not only a cannabis user but also a user of cocaine who’s sold drugs in the past, according to court findings, which could make him less sympathetic in the eyes of the court. Defendants in the other cases were merely found in possession of both a firearm and marijuana.
Lawyers for the defendant in Hemani argued in a brief last month that the high court should decline the case.
But in its reply brief submitted to SCOTUS this week, the Justice Department said that “this case is the best vehicle available.”
“The government has filed petitions for writs of certiorari in four other cases presenting the same question… As those petitions explain, this case presents the Second Amendment issue more cleanly than [three other cases pending before SCOTUS] and involves a more developed record” compared to a fourth.
DOJ also reiterated that, despite the respondents’ argument about the widespread availability of marijuana in particular at the state level, “federal law still prohibits possessing marijuana, and federal law takes precedence over contrary state law.”
“Section 922(g)(3) fits comfortably within this Nation’s tradition of firearm regulation,” it said under a section of the brief titled “Section 922(g)(3) Complies With The Second Amendment.”
The nine justices are set to privately discuss whether to take up Hemani and other cannabis and gun rights cases in a private meeting next month. That includes the cases U.S. v. Cooper, U.S. v. Daniels and U.S. v. Sam. A separate case, U.S. v. Baxter, is also before the court and has received briefs under two separate dockets, but has not yet been scheduled for discussion at the September 29 meeting like the other cases.
In Cooper, an appeals court panel previously dismissed a three-year prison sentence against the defendant, who was convicted for possession of a firearm while being an active user of marijuana. The solicitor general last month asked that the court hold off on deciding whether to review that case until the Hemani dispute is resolved.
The Baxter case, meanwhile, involves a defendant found in possession of both a firearm and a bag of marijuana. The government charged him under 922(g)(3). DOJ had repeatedly asked the court for more time to decide whether to seek review of an opinion in that case from the U.S. Circuit Court of Appeals for the Eighth Circuit, which ruled the gun ban might be unconstitutional as applied to the defendant. In late June, Sauer asked the justices to decide Hemani first and let that ruling control the decision in Baxter, similar to Cooper.
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 (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 ruling last month, for instance, 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 new Eighth Circuit 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 earlier this month 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.
The appeals panel 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.”
Judges in that case noted that historical restrictions on gun ownership under “drunkenness and lunacy laws” in the U.S. “were still always based on an ‘individualized assessment’ rather than a categorical judgment.”
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 centered 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.
The Fifth Circuit’s Daniels ruling came on the heels of a string of other judicial decisions casting doubt on the legality of the ban.
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 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.”
