Marijuana Moment: Congressional Researchers Lay Out Lawmakers’ Options To Address Gun Ban For Marijuana Users Following Supreme Court Ruling

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Congressional researchers are detailing options for how lawmakers could respond to a recent Supreme Court decision to uphold the gun rights of people who use marijuana.

Last month, the nine justices unanimously ruled that the government’s efforts to criminalize possession of firearms for cannabis consumers through a statute known as 922(g)(3) is an unconstitutional violation of the Second Amendment.

The court itself described its ruling as “narrow,” and the new Congressional Research Service (CRS) report on the issue said it “explicitly recognized room for legislative action in this area.”

The court’s opinion in the case, U.S. vs. Hemani, does not address “efforts to ban addicts, or those presently intoxicated, from possessing a firearm,” the majority opinion says. “We do not address other prophylactic laws Congress might adopt after determining that users of a particular drug pose a special risk of misusing firearms.”

“We do not even address whether the government could bring a prosecution under §922(g)(3) accompanied by individualized proof that the defendant’s use of marijuana (or any other drug) renders him a danger to himself or others,” it said. “Or proof that a certain drug always renders its users dangerous because of its potency or for some other reason.”

The new CRS report says that “Congress may accept this invitation to amend § 922(g)(3) if it chooses.”

“For example, Congress might opt to amend the law to more narrowly capture only those individuals who may, because of their use or the nature of the drug involved, present a danger to themselves or others,” it says. “Congress may be interested in modifying other categorical prohibitions in § 922(g) in light of the Court’s discussion of historical laws, particularly to the extent that the government may turn to these laws in future cases to defend the constitutionality of a modern firearms restriction.”

The report from congressional researchers also says, however, that lawmakers may alternatively want to “allow lower courts to sort out any residual questions from Hemani,” including how to interpret whether language in the statute that bars people who are “addicted to” illegal drugs from possessing firearms is consistent with the Second Amendment.

“A number of petitions for review raising Second Amendment issues have been filed with the Court,” CRS said. “Should the Court grant any such petitions, Congress may have more information to consider when determining whether and what adjustments to § 922(g) may be appropriate.”

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The Supreme Court, for its part, has already started applying its finding in the case to those involving other cannabis consumers who were prosecuted for possessing firearms.

A recent poll, meanwhile, found that most Americans support the Supreme Court’s decision on gun rights for cannabis consumers—including majorities across party lines.

Also, a federal agency that regulates guns says it is planning to provide guidance in the wake of the court ruling on the Second Amendment rights of people who use marijuana.

The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) noted the court’s unanimous ruling in a social media post, saying it is “reviewing the decision and assessing its impact.”

“Additional guidance will be provided soon,” the agency said.

ATF is responsible for carrying out the federal law known as 922(g)(3) that prohibits people who illegally consume controlled substances from possessing or purchasing firearms and has now been partially struck down when it comes to cannabis consumers who otherwise show no signs of posing a threat of violence.

The court, in the majority opinion, said that the broad ban and the government’s effort to defend it are “at odds with” the Trump administration’s move to federally reschedule cannabis.

The government “asks us to conclude that anyone who regularly uses marijuana is categorically violent and dangerous without any further showing,” the opinion says. “All based on little more than its current say-so, one at odds with its own regulatory actions. And affording the government that kind of ‘broad power to designate any group as dangerous and thereby disqualify its members from having a gun’ would risk allowing it to ‘quickly swallow’ the Second Amendment.”

ATF in May posted a proposed revised version of Form 4473, which must be filled out by anyone purchasing a gun from a federally licensed firearms dealer, to acknowledge the federally legal status of medical marijuana under the Trump administration’s recent move to reschedule the drug.

The change is likely due to the fact that in April, Acting Attorney General Todd Blanche issued an order that immediately moved marijuana products regulated by a state medical cannabis license to Schedule III of the Controlled Substances Act (CSA), and similarly rescheduled marijuana products that are approved by the Food and Drug Administration (FDA). A hearing to consider broader cannabis rescheduling is scheduled for this month.

Advocates expect that ATF will need to issue further changes to the gun purchase form in the wake of the court’s ruling in U.S. v. Hemani, the case it decided this month.

ATF also moved earlier this year 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, which is currently open for public comment through June 30, 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.

The Supreme Court heard arguments in the Hemani case in March, with the Trump administration urging the justices to uphold the ban on gun possession by marijuana users.

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, the Department of Justice 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.

“Those laws, the government contends, demonstrate a tradition of firearm regulation consistent with its effort to disarm any regular user of any controlled substance without any further showing. But the government’s analogy fails under every measure it asks us to consider,” the court’s opinion said. “The historical laws on which it relies targeted different kinds of people, did so for different reasons, and operated in different ways. And faced with all these shortcomings in the government’s submission, we cannot say it has carried its conceded burden of showing its prosecution of Mr. Hemani complies with the Second Amendment.”

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

In a separate 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 asking  the court to take up the dispute, 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 on the FBI’s radar.

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 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.

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.

Sauer, the solicitor general, sent the justices a letter in April arguing that the Trump administration’s move to federally reschedule marijuana should not impact their decision in the Hemani case.

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