Marijuana Moment: ACLU Attorney ‘Confident’ Supreme Court Will Strike Down Gun Ban For Marijuana Users After Oral Arguments Next Week

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With the U.S. Supreme Court set to hear a case next week on the constitutionality of a federal gun ban for marijuana users, attorneys with the American Civil Liberties Union (ACLU) are feeling “hopeful” that justices will take their side over the Trump administration’s Justice Department and ultimately declare the current policy unlawful.

Oral arguments in the case, U.S. vs. Hemani, are scheduled for Monday. And after years of litigation on the issue in courts across the country, advocates are eager to see the cannabis and firearms issue resolved in their favor with justices agreeing that the statute known as Section 922(g)(3) violates the Second Amendment of the U.S. Constitution.

Brandon Buskey, director of ACLU’s Criminal Law Reform Project, is part of the legal team representing Ali Danial Hemani, who challenged his federal conviction under 922(g)(3) for unlawful possession of a gun as a person who regularly used cannabis.

Buskey discussed the case in an interview with Marijuana Moment on Tuesday, detailing how the organization plans to navigate the thorny legal issues that have divided lower courts, what questions it anticipates from the justices and how it is preparing to respond to DOJ’s likely claims.

In case after case and filing after filing, DOJ has been steadfast in its position that the federal gun ban is appropriately enforced, insisting that even under the rigorous standards for gun laws that must be applied under recent Supreme Court precedent, restricting firearm rights for cannabis consumers is a public safety imperative.

But on the other side of the debate, groups as politically diverse as ACLU and the National Rifle Association (NRA) have maintained that Section 922(g)(3) represents unconstitutional government overreach that ignores basic realities: That is, with cannabis now legal in some form in the vast majority of states—and even the federal government’s long-held prohibitionist policies gradually softening—it’s time to recognize that cannabis users aren’t part of some inherently dangerous caste whose Second Amendment rights must be categorically denied.

“We don’t think that there’s any valid basis in history or tradition to justify that prosecution,” Buskey said.

The following interview has been lightly edited for clarity.

Marijuana Moment: Can you give an overview of the legal arguments ACLU plans to make challenging the current federal gun ban for cannabis users?

Brandon Buskey: Our position is very basic and straightforward. It really consists of two parts. The first is that the statute in question prohibits gun possession by people based simply on marijuana use—but is unconstitutionally vague. It does not provide the kind of clarity that the Supreme Court requires of criminal statutes, especially statutes that expose an individual to up to 15 years of imprisonment. And because it doesn’t have that clarity, it lends itself very easily to arbitrary and discriminatory enforcement, and that’s our first point court in terms of why this law can’t stand.

Second, even if we could agree on a definition of unlawful user that would apply to our client, Mr. Hemani, the law does not comport with the Supreme Court’s test for gun rights regulation. On the Second Amendment, the court has made clear that modern gun rights regulations have to fit the history and tradition of firearms regulation, so the government has to be able to point to an analogous type of firearm restriction from around the time of the [country’s] founding in order to prohibit individuals in the present from owning a firearm.

Now our position is that that leaves ample room for the government to implement reasonable prohibitions on gun possession that are directly attuned to public safety risks. But this law does not do that. Instead, this law instead imposes a categorical presumption of dangerousness for a whole category of responsible gun owners based simply on their use of a common intoxicant like marijuana. And we don’t think that there’s any valid basis in history or tradition to justify that prosecution.

MM: What kind of questions do you expect justices will want to examine in this particular case? And are you confident they’ll be amenable to those arguments ACLU will be raising?

BB: We are hopeful that our position will prevail in front of the court. and that’s in part, on the Second Amendment question, because the court has emphasized that the Second Amendment is a fundamental right—and so our position is that, because it is a fundamental right, the government can’t take it away based on these arbitrary definitions of what an unlawful user might be or with prohibitions that don’t have any analogous precedent from the founding era.

I suspect the court will have questions teasing out how broad the rule might apply. Does it apply to other types of drugs? Things like that. However, our emphasis will be that our argument is very narrow, and it really is limited to how this law is applied to an individual like Mr. Hemani, for whom the government has only established two basic facts: One, that he is a regular user of marijuana and, two, that he had possession of a weapon that was safely secured at the time it was located.

And, because of that, we are confident that the court will will see that our argument is narrow and doesn’t implicate other broader questions—perhaps more difficult questions—that aren’t before the court in this argument.

MM: What about DOJ? What are you expecting from the government as you head into oral arguments?

BB: We anticipate that the government will have a very difficult time meeting its burden of establishing a historical analog, because it is clear that the government has decided to double down on this analogy—that someone who uses a common intoxicant like marijuana, or potentially someone, in the government’s view, [who uses] an intoxicant like alcohol, can be disarmed and imprisoned for 15 years.

In the government’s view, those individuals—based on their regular use—are the equivalent of what was known at the founding as habitual drunkards, individuals who were subject to civil commitment and criminal prosecution because they simply could not could not resist the compulsion to abuse alcohol.

That’s going to be a very difficult analogy for for the government to sustain here. And I think it’s one that the general public would be very surprised to hear that the government views users of a substance that is legal to some extent in nearly every state, as habitual drunkards [and] as people who are inherently dangerous simply by use of a common intoxicant like marijuana.

MM: This also comes two months after President Donald Trump signed an executive order directing the completion of a federal marijuana rescheduling proposal. To what extent do you think that issue will be addressed in this more narrowly focused gun and marijuana case?

BB: I think it’s definitely relevant to the questions before the court, certainly, because the law makes it a crime for any unlawful user of a controlled substance to possess a gun. The rescheduling order directed by President Trump doesn’t technically shift the question in this case, because it would still be illegal for unlawful user of a Schedule III drug [to own or possess a] firearm.

However, it does, in our view, undermine the government’s position that individuals who use marijuana on some regular basis, although it’s not totally defined, are categorically and presumptively dangerous.

The president in that order made clear that there are valid purposes, or valid medical uses of marijuana, and it should be studied more in order to make it available to individuals who might need it for pain relief and other other purposes. And so it really strains credulity for the government to say that, notwithstanding that recognition, it should still be authorized to prosecute, for example, the veteran who is using medical marijuana legally under the laws of his or her state, but also owns a firearm. That individual, despite the president’s proclamation, would not be protected from prosecution under the statute.

MM: Most people live in a state where cannabis is legal. Public opinion strongly favors reform over criminalization as it concerns cannabis. How should people understand why it is that DOJ continues to make such sweeping and stigmatizing generalizations about marijuana consumers to support this gun ban?

BB: The best way to understand this, perhaps, is the government—under numerous administrations—almost always defends the constitutionality of criminal statutes, even when there are potentially major problems with those statues and even when it’s clear that they are not in step with the consensus of the popular will.

So I think that underscores a point that we’re making throughout our brief, which is that it’s really up to Congress to write a clearer law—but I think it’s also up to the Supreme Court to make clear that the government does not have the authority to enforce this law and cannot claim such broad authority under the Second Amendment. And I think, because the executive almost always wants to maintain the power to prosecute in these cases, then the other branches of our government have to come forward and limit that authority.

MM: Is there anything else you’d like to add about ACLU’s position on this issue?

BB: I would only add that we want to make it very, very clear our position is that gun violence is a real problem. It deserves real solutions. That marijuana use is not purely innocuous. However, the prosecution of our client in this case does not serve public safety and is not in line with the kinds of valid prohibitions on gun possession or gun use that are open to states under the Second Amendment, and that’s why we’re arguing this law simply cannot stand.

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