Marijuana Moment: Supreme Court Justices Suggest Trump’s Marijuana Rescheduling Move Undermines Gun Ban For Users That His DOJ Is Defending

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U.S. Supreme Court justices seemed skeptical of the federal government’s legal defense of a law banning people who use marijuana from owning or possessing guns on Monday—with some pointing to a pending rescheduling action as a factor undermining the idea that cannabis consumption makes a person uniquely dangerous to society in a way that justifies their disarmament.

After years of legal challenges to the federal statute, Section 922(g)(3), in courtrooms across the country, the high court justices heard oral arguments in U.S. vs. Hemani and put questions to the Trump administration’s Justice Department and attorneys for Ali Danial Hemani, who challenged his conviction for unlawful possession of a gun as a person who regularly used cannabis.

The federal government has consistently maintained its position that the law appropriately disarms marijuana users who, they claim, are uniquely dangerous. To meet a strict Supreme Court standard for firearm laws, DOJ has also drawn sometimes eyebrow-raising comparisons between cannabis consumers and the mentally ill and habitual drunkards to establish a historical analogue that aligns with the country’s founding era.

On the other side of the debate, civil rights groups—including the ACLU, whose attorneys are among those representing Hemani—and gun organizations such as the National Rifle Association (NRA) have argued that the current policy represents a misguided categorical infringement of Second Amendment rights for a population that uses a substance that’s been legalized in a majority of states and is possibly going to be reclassified under federal law as well.

Precedent stipulates that “legislatures can regulate to keep guns out of the hands of dangerous people, but when I look at this statute—and when I look at what the qualifications are for being listed on one of these schedules—they’re all about public safety,” Justice Amy Coney Barrett, who was appointed by President Donald Trump, said. “Here with the marijuana, I just don’t see anything in the scheme that actually reflects Congress’s judgment that this makes someone more dangerous.”

Another Trump appointee, Justice Neil Gorsuch, said the notion that there mere fact that a drug is illegal means its usage makes a person inherently dangerous raises complicated questions about how that standard is applied according to the Controlled Substances Act (CSA).

“Is it just Schedule I? Is it Schedule II? How far down does that go?” he asked. And if it’s the case that the government is narrowly interested in preventing people from owning guns if they use Schedule I and Schedule II drugs but not less restricted substances, “what do we do with this case given that, yes, [marijuana is] presently a Schedule I drug, but the government itself is considering rescheduling it to Schedule III.”

“The drug that is involved in this case might wind up being a Schedule III drug tomorrow,” Gorsuch said. “It’s just an odd case to have chosen to test to test the principle when the government itself is potentially rescheduling it as a drug that it wouldn’t think would qualify” for categorical disarmament.

Sarah Harris, the principal deputy solicitor general for the Trump administration’s DOJ who previously served as acting U.S. solicitor general, said responded by first pointing out that, “at the time when the offense was committed, marijuana is in—was a Schedule I drug.” And secondly, “the government has not made final decisions with respect to what to do with marijuana.”

“But I think something that is clear for the from the [notice of proposed rulemaking]…is that even Schedule III drugs, which include things like ketamine, the difference is they have some medically accepted uses, not that they’re not dangerous,” she said. “I think the government has to make a decision with respect to their risk potential of marijuana and other externalities.”

Listen to the Supreme Court oral arguments in U.S. vs. Hemani:

Erin Murphy, partner at the firm Clement & Murphy, PLLC, represented Hemani in the hearing, pointing out to justices that “we’re not arguing that the Second Amendment doesn’t allow for categorical prohibitions—that is not our position—and we’re not even arguing that Congress couldn’t, perhaps, have categorical restrictions as to particular substances.”

“Our core point is, if Congress wants to do that, then the government needs to prove with its burden of proof under [past Supreme Court precedent] not just that this was a reasonable determination supported by substantial evidence that gets past [Administrative Procedures Act] review with highly discretionary, we’ll-assume-the-government-knows-what-it’s-talking-about, that it has, in fact, identified the category in a way that maps on to the historical tradition” of U.S. gun laws, she said.

“Must there be an individualized determination as to anybody who is prosecuted under any of the subsections of 922(g)?” Gorsuch asked.

“No,” Murphy said.

The court spent much of its time with Murphy discussing the qualitative differences between what constitutes addiction and how that relates to historical analogues in U.S. gun laws concerning “habitual drunkards.”

Justice Elena Kagan, one of the liberal-leaning justices on the bench appointed by former President Barack Obama, posed a hypothetical to the respondent’s lawyer: How should the government navigate the law in a situation where a person infrequently used the psychedelic ayahuasca?

“If the drug is ayahuasca, and it’s a very, very, very intense hallucinogen—and the the episode lasts a very long time, but it’s not, let’s say, an addictive drug [and] you can choose when to take it, but when you’re in its grip, reality dissolves—I’m assuming that Congress has a good reason for saying, when reality dissolves, you don’t want guns around,” Kagan said. “But that to me, when you give the description of the historical analog, to me that’s going to fail your test. Should it fail your test?”

Murphy replied that “I think that it would be a little bit difficult to show that really using that drug every few weeks is going to be enough to render you akin to the concept that the historical drunkard laws were getting at, which is that your consumption rendered you [dangerous].”

“We’re not saying that you had to be intoxicated all the time, but your consumption impaired your ability to function, even your moments of sobriety. That’s what the courts are talking about,” she said. “They’re asking whether it doesn’t have to be addiction. It can be addiction, certainly, but it could also be you’re consuming so frequently that that’s really all you do.”

Gorsuch noted that “this statute does cross-reference the Controlled Substances Act, which then does define addict as a habitual user so as to endanger the public morals. Just leave it at that. And my question is, is that definition of addict good enough, in your view, to satisfy the tradition of prohibiting gun ownership possession by addicts, and if not, what is the delta?”

Murphy replied that “these cases arise because marijuana, [and] it would be difficult for the government to make that showing when it is the considered judgment of 40 states, the District of Columbia, three territories and the president” that cannabis use doesn’t intrinsically make a person a danger to society.

“Where the analogy falls apart vis a vis marijuana is the government saying it doesn’t matter if it’s somebody who’s taken the sleep gummy, smoking one joint a couple nights a week when they come home after a long day at work or if it’s the person who’s smoking all day before they drive their car and operate heavy machinery at work or whatever it may be,” she said. “They say none of that matters—and we think it does.”

It’s unclear when justices will issue their ruling in the case. The lines of questioning and commentary from justices demonstrated a degree of skepticism regarding the government’s defense of current statute, and gun groups following Monday’s hearing seemed to generally interpret the case as moving in the respondent’s favor, but it’s not clear how sweeping of a ruling the court will issue, if it does in fact rule for Hemani.

As the scheduling discussion suggested, however, the possibility of federal marijuana rescheduling could play into the case and how justices approach their ruling. And it remains to be seen whether that rescheduling process will be completed by the time the Supreme Court issues its opinion.

Brandon Buskey, director of ACLU’s Criminal Law Reform Project, separately previewed his organization’s case against Section 922(g)(3) as applied to their client in an interview with Marijuana Moment last week.

Numerous amici briefs were filed with the court ahead of the much-anticipated hearing, with several pointing out that the validity of the current federal policy is made all the more confounding by the fact that President Donald Trump in December directed the expeditious finalization of a rule to move cannabis from Schedule I to Schedule III of the Controlled Substances Act (CSA).

In the background, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) has moved to loosen rules that bar people who consume marijuana and other illegal drugs from being able to lawfully purchase and possess guns by making it so fewer people would be affected.

The interim final rule from ATF seeks to update the definition of “unlawful user of or addicted to any controlled substance” under an existing policy that has been interpreted to deny Second Amendment rights to people who have used illegal substances a single time within the past year.

Meanwhile, in December, attorneys general for 19 states and Washington, D.C. filed their own brief siding with the federal government in the Hemani case, insisting that justices should maintain the current § 922(g)(3) statute. The governor of Colorado, whose attorney general was among that group, subsequently said he didn’t think his state should have taken that position.

Also in December, Smart Approaches to Marijuana (SAM) and 21 other prohibitionist groups filed a brief urging justices to uphold the constitutionality of the federal gun ban for people who use cannabis—which they claim is associated with violence and psychosis.

Trump administration Solicitor General D. John Sauer, for his part, told the Supreme Court that people who use illegal drugs “pose a greater danger” than those who drink alcohol.

Meanwhile, the Biden administration was evidently concerned about potential legal liability in federal cases for people convicted of violating gun laws simply by being a cannabis consumer who possessed a firearm, documents recently obtained by Marijuana Moment show.

The previously unpublished 2024 guidance from former President Joe Biden’s Justice Department generally cautioned U.S. attorneys to use discretion in prosecuting federal cannabis cases, particularly for offenses that qualified people for pardons during his term. But one section seems especially relevant as the Supreme Court takes on a case challenging the constitutionality of the current federal gun statute.

With respect to Hemani, in a separate August filing for the case, the Justice Department also emphasized that “the question presented is the subject of a multi-sided and growing circuit conflict.” In seeking the court’s grant of cert, the solicitor general also noted that the defendant is a joint American and Pakistani citizen with alleged ties to Iranian entities hostile to the U.S., putting him the FBI’s radar.

If justices declare 922(g)(3) constitutional, such a ruling could could mean government wins in the remaining cases. The high court recently denied a petition for cert in U.S. v. Cooper, while leaving pending decisions on U.S. v. Daniels and U.S. v. Sam.

In interviews with Marijuana Moment, several Republican senators shared their views on the federal ban on gun possession by people who use marijuana—with one saying that if alcohol drinkers can lawfully buy and use firearms, the same standard should apply to cannabis consumers.

Separately, the U.S. Court of Appeals for the Tenth Circuit last year 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 Supreme Court ruling in which the justices generally created a higher standard for policies that seek to impose restrictions on gun rights.

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.

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 another 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 Third Circuit separately 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.

A federal court in October agreed to delay proceedings in a years-long Florida-based case challenging the constitutionality of the ban on gun ownership by people who use medical marijuana, with the Justice Department arguing that the Supreme Court’s recent decision to take up Hemani warrants a stay in the lower court.

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Last 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 in 2024 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.

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.

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