Pennsylvania Prosecutor Argues Federal Gun Ban For Medical Marijuana Users ‘Is Unconstitutional, Full Stop’ In New Court Brief

Plaintiffs in a federal lawsuit over the Second Amendment rights of medical marijuana cardholders—including a local prosecutor in Pennsylvania who is himself a cannabis patient—filed a fresh brief in their case on Tuesday, arguing that the “deprivation of Second Amendment rights for merely using a medicinal substance has no basis in this nation’s history or tradition and is unconstitutional, full stop.”

The underlying suit was filed in January by Pennsylvania’s Warren County District Attorney Robert Greene, along with advocacy group the Second Amendment Foundation and a U.S. military veteran who was recommended medical marijuana but has not registered as a patient because it would deny him the right to possess a firearm.

The latest filing, in support of a motion for a preliminary injunction that would prevent the government from enforcing the federal gun ban while the overall case is considered, comes as U.S. Supreme Court weighs whether to take up a separate case over the constitutionality of the law.

“Simply put, throughout this nation’s history, there was no tradition of limiting an individual’s Second Amendment rights by virtue of their use of marijuana—let alone their use of alcohol, an intoxicant widely known and used by the American populace,” says the new brief, filed in U.S. District Court for the Western District of Pennsylvania.

Plaintiffs are asking the court to prevent the government from enforcing legal restrictions around cannabis and guns, including those “which prohibit firearms purchases and possession by persons who use marijuana or other controlled substances,” according to the Bellevue, Washington-based Second Amendment Foundation (SAF).

“Individuals are placed in the untenable situation of having to choose whether to use a medicine recommended to them by a doctor to treat their symptoms at the expense of their Second Amendment rights or exercise their rights at the detriment of their health,” Adam Kraut, the group’s executive director, said in a press release. “Having to make such a choice is simply wrong and we look forward to vindicating the rights of those affected.”

Today SAF filed a brief supporting our motion for preliminary injunction in our Medical Marijuana Cardholder 2A case know as Greene v. Garland. https://t.co/Iss79QzGxK pic.twitter.com/uVm9PLXD3E

— SAF (@2AFDN) March 19, 2024

“It is long past the time for this restriction to be challenged,” added the SAF’s founder and executive vice president, Alan M. Gottlieb. “Our lawsuit raises very legitimate issues for a growing number of law-abiding citizens whose Second Amendment rights are unquestionably and arbitrarily infringed upon. The restriction lacks any direct or analogous historical support, as required by the Supreme Court’s 2022 Bruen ruling.”

In addition to the 2022 case (NY State Rifle and Pistol Assn. v. Bruen), which invalidated a New York state law requiring applicants for concealed carry permits to demonstrate proper cause, lawyers for the plaintiffs also point to Supreme Court rulings such as D.C. v. Heller, which held in 2008 that the Second Amendment entails an individual right to possess firearms, and 2010’s McDonald v. Chicago.

In the mid-1800s, some states—including Kansas, Missouri and Wisconsin—did prohibit people from carrying firearms while intoxicated, the brief says. But plaintiffs in the case “are not challenging potential prohibitions on carrying firearms while intoxicated, but the total bar on their ability to even possess firearms and ammunition for merely using a ‘controlled substance’ at some point in time that is not necessarily contemporaneous with their physical possession of a firearm.”

The new filing quotes a federal appeals court ruling that opined, “Throughout American history, laws have regulated the combination of guns and intoxicating substances. But at no point in the 18th or 19th century did the government disarm individuals who uses drugs or alcohol at one time from possessing guns at another.”

The lawsuit names U.S. Attorney General Merrick Garland, as well as the heads of the FBI and Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), as defendants. The suit represents what the lead attorney for the plaintiffs believes to be the first civil, rather than criminal, challenge to the federal statute barring gun ownership by cannabis users.

Participation by Greene, who has been a district attorney since 2013, is especially notable. The complaint states that the local prosecutor “intends to lawfully purchase, possess, and utilize firearms and ammunition so that he may exercise his constitutional right to keep and bear arms for self-defense and all other lawful purposes.” But he’s barred from doing so under federal statute because of his status as a state-certified medical cannabis patient.

The prosecutor announced late last year that he will not be seeking re-election and will be turning his focus to advocacy on medical cannabis patient rights issues.

Unlike the various previous court cases challenging the constitutionality of the gun ban for plaintiffs who have been criminally prosecuted, with a civil suit like this, “you’re looking at a challenge on behalf of people that are just asserting that this prohibition is unconstitutional, either on its face or as applied,” Adam Kraut, lead attorney for the plaintiff and executive director of SAF, told Marijuana Moment when the suit was filed.

“What I’m hoping is not only to win in our lawsuit, but that it sparks the federal Congress to do something and solve this problem because you have millions of Americans who are disenfranchised from their Second Amendment rights, being forced to choose either between treating their symptoms with medical marijuana or exercising their constitutionally guaranteed right,” he said. “That’s not acceptable.”

A Republican state senator in Pennsylvania, meanwhile, recently previewed a bill that he said would remove the state’s own barriers to letting medical marijuana patients carry firearms.

Sen. Dan Laughlin circulated a co-sponsorship memo about the forthcoming bill last month, noting that while the state’s 2016 medical marijuana law allows patients to “LEGALLY treat specific medical conditions with marijuana,” other state mechanisms—including the issuance of licenses to carry firearms—still treat cannabis as unlawful.

“A valid medical marijuana cardholder should NOT be considered an unlawful user and denied their rights,” Laughlin’s memo said.

More recently, Second Amendment rights advocates criticized a pair of developments that they say further underscore the need for reform.

Last month during a routine audit of a gun dealer, a federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) investigator reportedly ordered the store to stop the sale of a pistol because the investigator claimed the would-be buyer smelled of marijuana.

Meanwhile in a federal appeals court case this month, the Department of Justice argued that marijuana users “are more likely than ordinary citizens to misuse firearms,” likening them to “the mentally ill” as well as “infants, idiots, lunatics, and felons.”

“Because they are not ‘responsible citizens,’” DOJ lawyers wrote, “unlawful drug users and addicts do not have a Second Amendment right to possess firearms.”

The case is the Biden administration’s appeal of a federal court decision out of North Carolina that found the government’s prohibition of firearm possession by a person who “is an unlawful user of or addicted to any controlled substance” is unconstitutional on its face.

The Firearms Policy Coalition noted that the filing came just hours before President Joe Biden said during his State of the Union address that no one should be in jail for using or possessing marijuana.

The issue has been raised in multiple state legislatures and federal courts in recent years, as marijuana and gun rights advocates challenge the constitutionality of the federal ban that currently prevents cannabis consumers from owning firearms.

Just this month, Maryland lawmakers took testimony about a measure that would protect the gun rights of medical marijuana patients under state law, while organizers in Colorado are preparing to gather signatures to qualify a ballot initiative that would remove state barriers prohibiting gun owners from obtaining concealed handgun permits for lawful use of medical marijuana.

The federal Justice Department has insisted on the necessity of the banning cannabis consumers for possessing guns in numerous federal courts, arguing at points that people who use marijuana pose a unique danger.

Supreme Court justices are expected to decide soon whether they will hear a federal government appeal of a circuit court ruling that found the firearm restriction violates the Second Amendment.

That ruling came from the U.S. Court of Appeals for the Fifth Circuit, which examined the federal statute known as Section 922(g)(3) that prevents someone who is an “unlawful user” of an illegal drug from buying or possessing firearms. The circuit court found the policy unconstitutional as applied to a man who faced a conviction after admitting to having used cannabis while in possession of a gun.

While people who use cannabis are barred from owning firearms under the statute, a little-notice FBI memo from 2019 that recently surfaced shows that the federal government generally does not consider it a violation of the law for medical cannabis caregivers and growers to have guns.

Republican congressional lawmakers have filed two bills in the first half of this current two-year session that focus on gun and marijuana policy.

Rep. Brian Mast (R-FL), co-chair of the Congressional Cannabis Caucus, filed legislation last year to protect the Second Amendment rights of people who use marijuana in legal states, allowing them to purchase and possess firearms that they’re currently prohibited from having under federal law.

Senate Majority Leader Chuck Schumer (D-NY) has committed to attaching that legislation to a bipartisan marijuana banking bill that advanced out of committee in September.

Meanwhile, Mast is also cosponsoring a separate bill from Rep. Alex Mooney (R-WV) this session that would more narrowly allow medical cannabis patients to purchase and possess firearms.

Congressman Demands Answers From Biden Admin On Marijuana Rescheduling Legal Opinion Request For DOJ