Marijuana Moment: Trump DOJ Notes ‘Significant Disagreement’ On Marijuana Consumer Gun Ban In New Supreme Court Filing

[Tokeativity]

The Justice Department is telling the U.S. Supreme Court that “significant disagreement” about the federal ban on gun possession by marijuana consumers among numerous appeals courts has led to a situation where the justices should step in and provide clarity for the country.

The comments came in a new filing in a case that DOJ is asking the Supreme Court to reject due to recent procedural developments, though it wants the justices to take up a separate case on the issue while holding on to others for later action.

“In short, seven courts of appeals—the Third, Fifth, Sixth, Seventh, Eighth, Tenth, and Eleventh Circuits— have recently issued decisions concerning as-applied Second Amendment challenges to Section 922(g)(3),” the filing says, referring to the federal law that precludes people from owning firearms if they’re deemed to be an unlawful user of cannabis or other illegal drugs, “and each court has resolved that challenge by applying a somewhat different constitutional test.”

“Those decisions confirm that the question presented recurs frequently, has generated significant disagreement in the courts of appeals, and warrants this Court’s review,” U.S. Solicitor General D. John Sauer wrote in the Monday brief.

The government’s filing in U.S. v. Baxter asks the justices to reject that case, a stance also shared by lawyers for the respondent, Keshon Daveon Baxter, whose conviction for being unlawful user of a controlled substance in possession of a firearm was reinstated by a district court after previously being remanded back from the U.S. Court of Appeals for the Eighth Circuit.

“If the Eighth Circuit affirms that decision, the vacatur of petitioner’s original conviction would be harmless,” Sauer’s filing says. “And if the court reverses, the government could, if appropriate, file a new petition for a writ of certiorari.”

For now, DOJ said the court should instead take up the separate case of U.S. v. Hemani, which involves a person convicted of possessing a firearm while using cannabis and cocaine and participating in illicit drug sales.

“In its reply brief in Hemani, the government explained that the question presented had generated a multi-sided circuit conflict: The Seventh Circuit had upheld Section 922(g)(3) in a decision that predated NYSRPA v. Bruen, but the Third, Fifth, and Eighth Circuits, each applying different tests, had issued decisions since Bruen concluding that the statute violates the Second Amendment in many of its applications,” the brief says, referring to a major 2022 case that struck down a New York gun control law. “Since then, the Seventh Circuit has rejected the government’s contention that its pre-Bruen decision upholding Section 922(g)(3) remains good law.”

“Taking a fresh look at the relevant history, however, the court determined that ‘historical laws that kept guns out of the hands of the intoxicated and the mentally ill are sufficiently analogous to § 922(g)(3)’s proscription of firearms possession by active and persistent drug users,'” the filing says. “Other courts of appeals, too, have issued decisions concerning as-applied challenges to Section 922(g)(3).”

While arguing that justices should move forward with the Hemani case now, DOJ said the court “should also hold other pending petitions concerning as-applied challenges to Section 922(g)(3).”

“But the Court need not hold the petition in this case,” it said, referring to the Baxter case.

On Wednesday, dockets for several pending cases on the marijuana and guns issue were updated to note that the justices are set to discuss them in a closed-door meeting on October 10.

With respect to the Justice Department’s commentary on the diverging opinions among courts on the gun and cannabis issue, the U.S. Court of Appeals for the Tenth Circuit last month 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 U.S. Supreme Court ruling in which the justices generally created a higher standard for policies that seek to impose restrictions on gun rights.

The ruling states that any such restrictions must be consistent with the historical context of the Second Amendment’s original 1791 ratification.

The historical analogues that the Justice Department relied on to make the case that the ban is consistent included references to antiquated case law preventing Catholics, loyalists, slaves and Indians from having guns.

The circuit court, for its part, said that “the government must show non-intoxicated marijuana users pose a risk of future danger” to support the current policy. “This inquiry, which may involve fact finding, is best suited for the district court.”

This opinion comes nearly a year after the Tenth Circuit heard oral arguments in the case, with judges questioning not only the firearms prohibition itself but also whether it was within the scope of the appeals panel’s power to review the underlying lower court’s decision. Ultimately, they determined that they did possess that authority.

Meanwhile, 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.

In the background of these developments, the U.S. Supreme Court is considering a series of cases challenging the gun ban for people who use marijuana.

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 recent 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 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 recently 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.

—
Marijuana Moment is tracking hundreds of cannabis, psychedelics and drug policy bills in state legislatures and Congress this year. Patreon supporters pledging at least $25/month get access to our interactive maps, charts and hearing calendar so they don’t miss any developments.

Learn more about our marijuana bill tracker and become a supporter on Patreon to get access.
—

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 former 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.”

Photo elements courtesy of rawpixel and Philip Steffan.

The post Trump DOJ Notes ‘Significant Disagreement’ On Marijuana Consumer Gun Ban In New Supreme Court Filing appeared first on Marijuana Moment.

View the live link on MarijuanaMoment.net