The U.S. Supreme Court has narrowed its list of pending cases concerning the federal ban on gun ownership by people who use marijuana, with justices declining to take up one of about a half dozen—with the others now set to be discussed by the justices at a closed-door meeting on Friday.
On Tuesday, the court denied a petition for cert in U.S. v. Baxter, which involves a challenge to the federal statute known as Section 922(g)(3). That isn’t especially surprising, however, as both the Justice Department and Keshon Daveon Baxter, the man being prosecuted in the case, 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. That came after the case was remanded back from the U.S. Court of Appeals for the Eighth Circuit.
But advocates are closely monitoring a series of other related cases contesting the constitutionality of the gun ban for cannabis consumers, which they say violates the Second Amendment.
DOJ has specifically asked justices to take up one case in particular on the issue while holding on to others for later action. That case, U.S. v. Hemani, involves a person convicted of possessing a firearm while using cannabis and cocaine and participating in illicit drug sales. It’s viewed as an easier dispute that would favor the government given the involvement of drugs beyond marijuana.
The multiple pending cases were scheduled to be discussed in a closed-door meeting last week. It’s unclear if that happened, but the dockets on the remaining cases were updated on Tuesday to indicate that the justices are now planning to consider them this Friday.
Besides Hemani, the other pending cases on gun rights for marijuana consumers set to be discussed at this week’s private conference are U.S. v. Cooper, U.S. v. Daniels and U.S. v. Sam.
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.
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.”
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.
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.
—
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.
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.
Marijuana Moment is made possible with support from readers. If you rely on our cannabis advocacy journalism to stay informed, please consider a monthly Patreon pledge.
