Supreme Court Weighs Case Challenging Federal Gun Ban For Marijuana Users, Congressional Researchers Report In Legal Brief

The legal question over the constitutionality of a federal gun ban for people who use marijuana is now before the U.S. Supreme Court, where justices are expected to decide whether they will hear an appeal of a circuit court ruling that found the restriction violates the Second Amendment.

The Congressional Research Service (CRS) noted the pending action in a legal sidebar that was published this month, explaining how three relevant cases are under consideration in the nation’s highest court that could finally settle the issue.

Briefs in one of those cases—United States vs. Daniels—were distributed for a Supreme Court conference this month, where justices were presented with a number of cases that they could choose to hear. The Justice Department had asked the court to hold its petition for a writ of certiorari until it resolved a separate case that justices are actively reviewing because of “overlaps” between the two.

No decision was made in the conference, so it’s unclear if the Supreme Court will ultimately grant the government’s request or not.

The ruling that DOJ is appealing 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.

Multiple courts have taken up the issue, forcing the Justice Department to defend the statute amid a series of challenges across the country. But the Fifth Circuit is currently the highest court to have ruled against the ban, covering jurisdictions in Mississippi, Louisiana and Texas.

A key component of the legal argument against the policy is based on an interpretation of an earlier Supreme Court case, where justices ruled that gun restrictions must be generally consistent with the historical context of the 1791 ratification of the Second Amendment. People challenging the federal statute argued that there’s no appropriate historical analogue, while DOJ has maintained that historical laws depriving guns from certain populations such as the mentally ill and habitually drunk justify its enforcement.

The federal government has now asked the Supreme Court to wait to act on the Daniels case until it decides on a separate issue concerning the constitutionality of a law restricting firearms for people convicted of domestic assault. DOJ says there are legally relevant parallels that could inform the Daniels case.

Congressional researchers gave a summary of the Second Amendment challenges in a new brief this month, laying out the cases before the Supreme Court and briefly describing “considerations for Congress” if lawmakers were to take up the issue.

The Daniels case “has drawn attention because it is one of the few cases holding an existing federal firearm law to be unconstitutional at least as applied and because it could result in Supreme Court involvement,” the CRS report says.

It added that “Section 922(g)(3) has also gained broader public attention because of a recent indictment” against President Joe Biden’s son, Hunter Biden, who has been charged with owning a gun while admitting to unlawful use of crack cocaine years ago.

Attorneys for Hunter Biden recently called on the U.S. District Court for the District of Delaware to dismiss the case, arguing that prosecutors are applying an unconstitutional statute that would criminalize millions of marijuana consumers acting in compliance with state law if broadly enforced.

Meanwhile, in a separate case in November, the Justice Department told the U.S. Court of Appeals for the Third Circuit that historical precedent “comfortably” supports the gun 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.

The federal government has repeatedly claimed that historical analogues provide clear support for limiting gun rights for cannabis users. But several federal courts have separately deemed the marijuana-related ban unconstitutional, leading DOJ to appeal in several ongoing cases.

The Justice Department asserted similar points during oral arguments in a separate but related case before the U.S. Court of Appeals for the Eleventh Circuit in October. That case focuses on the Second Amendment rights of medical cannabis patients in Florida.

The U.S. District Court for the Western District of Oklahoma also ruled last year that the ban prohibiting people who use marijuana from possessing firearms is unconstitutional, with the judge stating that the federal government’s justification for upholding the law is “concerning.”

In U.S. District Court for the Western District of Texas, a judge ruled last April that banning people who use marijuana from possessing firearms is unconstitutional—and it said the same legal principle also applies to the sale and transfer of guns.

In August, meanwhile, the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) sent a letter to Arkansas officials saying that the state’s recently enacted law permitting medical cannabis patients to obtain concealed carry gun licenses “creates an unacceptable risk,” and could jeopardize the state’s federally approved alternative firearm licensing policy.

Shortly after Minnesota’s governor signed a legalization bill into law in May, the agency issued a reminder emphasizing that people who use cannabis are barred from possessing and purchases guns and ammunition “until” federal prohibition ends.

In 2020, ATF issued an advisory specifically targeting Michigan that requires gun sellers to conduct federal background checks on all unlicensed gun buyers because it said the state’s cannabis laws had enabled “habitual marijuana users” and other disqualified individuals to obtain firearms illegally.

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.

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This month, meanwhile, the South Dakota House of Representatives approved two bills aiming to better inform patients about federal restrictions on firearm ownership for people who use marijuana. One would require that medical cannabis patient applications include a written warning about the gun ban, while the other would mandate that informational signs be posted on-site at dispensaries while instituting daily fines for businesses that don’t comply.

Colorado activists are pursuing a proposed 2024 ballot initiative to allow marijuana users to obtain concealed carry permits for guns.

Republican congressional lawmakers have filed two bills so far this session that focus on gun and marijuana policy.

Rep. Brian Mast (R-FL), co-chair of the Congressional Cannabis Caucus, filed legislation last May 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 last year and is pending floor action.

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.

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Photo elements courtesy of rawpixel and Philip Steffan.