A coalition of gun rights organizations is urging the U.S. Supreme Court to expand its examination of the constitutionality of a federal ban on firearm ownership by people who use marijuana—telling justices that a recent case on the issue it accepted would not properly settle the question of the current law’s constitutionality.
After the Supreme Court granted cert in the case U.S. v. Hemani earlier this month—which the Trump administration had pushed for—the Second Amendment Foundation (SAF) and five other gun rights advocacy groups filed an amici brief on Wednesday in a separate case pending before the justices.
Also, on Thursday, the Justice Department requested more time to file its own initial brief in that case, U.S. v. Harris, which hasn’t yet been granted cert by court. The government said a deadline extension from October 30 to December 1 was necessary “to complete preparation of the government’s response, which was delayed because of the heavy press of earlier assigned cases to the attorneys handling this matter.”
What the gun rights groups asked in their brief in the Harris case is that the Supreme Court jointly consider Hemani and Harris together to get a more comprehensive look at the constitutional challenge to the firearms ban known as 18 U.S.C. § 922(g)(3).
One of the main contentions with singularly focusing on Hemani, the brief says, is the fact that the case is “not limited to marijuana.”
“It also involves illicit drugs that do not share marijuana’s social acceptance and increasing legalization, nor its relative safety and medicinal use,” it says. “It also involves a criminal defendant with highly unusual facts, complete with alleged drug dealing and claimed ties to the Iranian Revolutionary Guard Corps.”
SAF Executive Vice President Alan M. Gottlieb said in a press release that the Harris case is “critical because it affects millions of law-abiding Americans who face losing their Second Amendment rights simply for using a substance legal in their state—often for medical reasons.”
In addition to SAF, the brief was also joined by the California Rifle & Pistol Association, Second Amendment Law Center, Operation Blazing Sword-Pink Pistols, Minnesota Gun Owners Caucus and Minnesota Gun Owners Law Center.
“It would be unjust for this Court to decide an issue affecting millions of Americans based on the unique and highly unusual facts present in Mr. Hemani’s case alone,” the groups said.
“The Petitioner here is far more representative of how this issue affects most otherwise law-abiding people who use marijuana (often in compliance with their state’s laws). The two cases should thus be considered together to help ensure this Court reaches the right result on this important question.”
Amid numerous legal challenges to § 922(g)(3) as it applies to cannabis consumers, the Justice Department has consistently defended the prohibition, likening marijuana users to mentally ill people and those who are habitually intoxicated, for example. Some suspect the federal government’s push for justices to take up Hemani over other cases is because of the multiple drugs involved that could play in its favor.
The new brief also addresses a core question of whether the gun ban for marijuana users is historically analogous to the country’s founding era, with DOJ making the case that because some laws prohibited people from possessing guns while drunk from alcohol, that’s a sufficient standard to justify the marijuana and firearms ban.
“Historically, the best example of this is alcohol, as its widespread consumption predates the founding. And sure enough, because of the dangers of mixing alcohol and firearms, plenty of laws arose to prevent inebriated people from being armed,” the groups said. “But what never existed were laws that prohibited people from owning guns because they sometimes drank. In the modern era, marijuana should be treated no differently.”
The current statute “is not akin to banning drunkards from carrying guns, it is akin to banning anyone who has a six-pack of Budweiser in their refrigerator from owning guns,” they said.
The brief also notes the “dramatic” shift in public opinion and laws around cannabis, pointing out that President Donald Trump is actively considering a proposal to move marijuana from Schedule I to Schedule III of the Controlled Substances Act (CSA) under a process initiated under the Biden administration.
“Yet because of the prohibition found in 18 U.S.C. § 922(g)(3), if Americans choose to use marijuana or other cannabis products (that often are legal in their state), they must surrender their Second Amendment right before they do so—and not only when they are intoxicated,” it says. “They may not even own firearms if they regularly consume cannabis products. This does not square with the lengthy historical tradition of how alcohol and firearms have been regulated.”
“In sum, especially when it comes to social acceptance, marijuana is not at all like the promethazine and cocaine involved in another petition that was recently granted certiorari,” the brief concludes.
“Intoxication is inconsistent with responsible firearm use, but our historical tradition has long allowed occasional users of socially acceptable substances like alcohol and marijuana to own and use firearms, so long as they do so while they are not presently intoxicated. For the reasons discussed above and in Petitioner’s brief, this Court’s intervention would be welcome in this case to resolve the circuit split that has developed on this issue. It should grant certiorari in this matter and hear it alongside Hemani.”
Meanwhile, in a motion from the Trump administration that was sent to the court last week, DOJ said there was mutual agreement between its attorneys and those representing the respondent in Hemani that the current deadline for briefs and reply briefs should be revised because of the “press of other cases.”
Currently, the Justice Department is supposed to file its first brief with the court by December 4, but it’s requesting that be extended to December 12. That would push the respondent’s deadline to submit a brief to January 20.
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.
Now that the Supreme Court has agreed to take up Hemani, if justices declare 922(g)(3) constitutional, such a ruling could could mean government wins in the remaining cases. The high court last week denied a petition for cert in U.S. v. Cooper, while leaving pending decisions on U.S. v. Daniels and U.S. v. Sam.
The court also recently denied a petition for cert in another gun and marijuana case, U.S. v. Baxter, but that wasn’t especially surprising as both DOJ and the defendants advised against further pursing the matter after a lower court reinstated his conviction for being an unlawful user of a controlled substance in possession of a firearm.
Meanwhile, in recent 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 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 Supreme Court ruling in which the justices generally created a higher standard for policies that seek to impose restrictions on gun rights.
Separately, 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 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 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 last week 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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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.
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.
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.
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