A coalition of gun rights advocacy groups is urging the U.S. Supreme Court to uphold a lower court ruling that deemed the federal ban on firearm ownership by people who use marijuana to be unconstitutional.
In an amicus brief filed with the Supreme Court on Thursday, the Second Amendment Foundation (SAF), California Rifle and Pistol Association (CRPA), Second Amendment Law Center (2ALC), Citizens Committee for the Right to Keep and Bear Arms and Minnesota Gun Owners Caucus (MGOC) identified a number of legal issues with the underlying federal statute, 18 U.S.C. § 922(g)(3).
“This Court has explained that when it comes to which types of arms may not be banned, the American people themselves confer constitutional protection through their choices,” the brief says. “By that same token, Americans have also traditionally chosen which substances are acceptable for responsible recreational use, and the fundamental right to keep and bear arms was never denied to people who occasionally partook in such drugs—unless they were carrying arms while actively intoxicated. ”
Justice determined in an earlier ruling that gun laws must be rooted in historical precedent going back to the founding principles enshrined in the U.S. Constitution.
“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 in public,” the gun organizations said. “But what never existed were laws that prohibited sober people from owning guns because they sometimes drank. In the modern era, marijuana should be treated no differently.”
“The constitutionality of 18 U.S.C. § 922(g)(3) is a critical question that must be addressed by this Court given the circuit split that has developed on it, particularly as it applies to substances like marijuana that have gained widespread social acceptance but remain federally illegal,” it said.
However, because the court selected U.S. vs. Hemani instead of other more marijuana-specific cases challenging the constitutionality of the federal ban, the amici called it an “exceptionally poor vehicle to decide such an important question.”
Further, while drugs such as fentanyl and methamphetamine “have not gained any widespread social acceptance and are extremely dangerous and highly addictive, marijuana by contrast is legal in two dozen states even for recreational use (and legal in another 16 for medicinal use).”
“Even that tally understates public opinion, as legislatures are lagging behind what Americans overwhelmingly think,” it says, citing polling data that shows majority support for legalization. “So dramatic has the public’s shift been on marijuana that [President Donald Trump] recently signed an executive order directing the completion of a process to reschedule it under federal law.”
“That move has bipartisan support, as President Biden had hoped to do the same,” it says. “The Government is no doubt aware of marijuana’s growing popularity, and of how controversial it would be to suggest that all marijuana users may be disarmed.”
“In sum, marijuana is closely analogous to alcohol in all ways except its current legal status,” the groups said. “This Court should bring the application of § 922(g)(3) as to marijuana into line with the historical tradition of restricting armed drunks and strike the Government’s efforts to apply it to those who are not publicly under the influence while carrying a firearm.”
“Intoxication is inconsistent with responsible firearm use, but our historical tradition has long allowed users of socially acceptable substances to own and use firearms, so long as they are not carrying a firearm while they are intoxicated. § 922(g)(3) is unconstitutional as it applies to Mr. Hemani’s marijuana use. The Fifth Circuit’s ruling should be affirmed.”
The amicus brief was filed days after ACLU attorneys representing Hemani made the case that the federal ban on gun ownership by marijuana consumers is nonsensical and unconstitutional—and that it’s made all the more confounding by the fact that Trump directed the expeditious finalization of a rule to move cannabis from Schedule I to Schedule III of the Controlled Substances Act (CSA).
“History shows that Founding-era laws addressed the dangers of intoxication and firearms through temporary restrictions on those actively impaired, never by stripping gun rights from sober individuals who occasionally use socially accepted substances like alcohol—or, by analogy, marijuana today,” SAF Director of Legal Research and Education Kostas Moros said in a press release. “We urge the Court to affirm the Fifth Circuit and reject this unconstitutional overreach.”
The Supreme Court is scheduled to hear oral arguments in the Hermani proceedings on March 2.
In the background, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) recently 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.
Last month, meanwhile, 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.
Several other briefs were also submitted last month for the case, which was granted cert in October. Firearm control groups including Everytown for Gun Safety, Second Amendment Law Scholars, Brady Center to Prevent Gun Violence, Giffords Law Center to Prevent Gun Violence and Global Action on Gun Violence have told the Supreme Court to overturn the lower court’s ruling in the matter, for example. A coalition of history and law professors also submitted a brief.
Also last month, 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.
U.S. 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.
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 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.
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 last year 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.
Read the gun rights groups’ amicus brief in the marijuana and firearms case below:
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