Trump’s administration has asked a federal judge to dismiss one case out of many pending ones concerning gun and marijuana rights. This is largely because they expect the U.S. Supreme Court will make a landmark ruling in this area.
The Justice Department is urging the U.S. District Court for Western District of Oklahoma to dismiss “without prejudice” a case that will be filed in 2022 against a man after the police discover cannabis and handguns in his vehicle at a traffic check.
Attorneys for the man, Jared Michael Harrison, also want the court to dismiss the case—but they take issue with DOJ’s specific request, as dismissing the case without prejudice would mean he could be prosecuted again. They also criticized government arguments for its motion. The department relied heavily upon the three-year length of the legal battle. Lawyers also rejected the argument that cases pending before the Supreme Court that are similar to those involving federal gun laws, cannabis or both should be dismissed without prejudice.
But according to the federal government, the request would be “in the interest of justice,” while recognizing that the constitutionality of the statute in question–18 U.S.C. § 922(g)(3)—”remains open both in this case and in the country as a whole. “
“There are currently seven petitions for certiorari pending before the Supreme Court challenging the constitutionality of § 922(g)(3) under the Second Amendment, six of which involve as-applied challenges, and are a mix of petitions filed by the United States and criminal defendants,” DOJ said, adding that they expect there’s a “reasonable likelihood that the Supreme Court will grant certiorari” in at least one of the pending cases.
The government said that continuing to prosecute this case would waste resources, both judicial and prosecution.
The Second Amendment Jurisprudence developed in a significant way over the last three years. According to the Tenth Circuit’s ruling, given the manner in which the case was handled three years prior, certain arguments have been waived. This prevents the government from raising them again on remand. The United States therefore believes the interests of justice would favor dismissal of this case in order to make way for another case without these obstacles.”
Harrison’s legal team said Tuesday in a filing that they “have no objection to dismissal as a whole.” The lawyers stressed that the dismissal must be “with prejudice” so that Harrison cannot be tried again on the same charge.
“The government seeks to abandon this prosecution—for now—while keeping open the ability to prosecute Mr. Harrison again in the future,” his lawyers said. The government, if it is granted its request, could reindict Mr. Harrison for an illegitimate reason at any moment.
According to the document, “the government is not ready for trial because the case has been old and is bound by appeals waiver rulings.”
It says that “These choices are solely attributable to the prosecution.” It says that allowing dismissal with prejudice in these circumstances allows the government to avoid the consequences of their own decisions, while keeping Mr. Harrison’s future prosecution as a threat.
“The possibility that the Supreme Court may take up § 922(g)(3) in another case is not a valid reason to keep Mr. Harrison under threat of reindictment. The Rule 48(a), which allows dismissal of a case when it is consistent with the administration of justice and not for holding defendants hostage while an appeal is pending, does allow this. If the government believes a forthcoming decision will alter the legal landscape, it remains free to test that decision in a future case—but not at Mr. Harrison’s expense.”
In the filing, the government’s reasoning is cited as a reason why dismissal with prejudice should occur, noting the fact that “the prosecution has already consumed years worth of litigation and appellate review resources, in addition to judicial resources”.
It says: “Allowing dismissal with prejudice would perpetuate the uncertainty and leave Mr. Harrison under an indictment for indefinite time despite the Government’s admission that they cannot currently try the case.” This outcome would be contrary to what Rule 48(a), which is intended to promote fairness, and integrity.
In cases like this, where government justifications are grounded in the age and complexity of the case or questions regarding resource allocation as well as prior litigation constraints, it is in the public’s best interest to prevent a renewal of prosecution. The indictment must be dismissed without prejudice. Finality, justice, and protection from harassment are all factors that point to this conclusion. “Mr. Harrison respectfully requests this Court to grant the Government’s Motion only up to dismissing the Indictment with Prejudice.”
The Tenth Circuit, in a case that was heard last month, ruled the government had to prove cannabis users “pose an imminent danger risk” in order to apply a ban on firearm ownership. It sided with the lower district court, which dismissed the indictment of Harrison.
Justice Department appealed this ruling to Tenth Circuit in 2023. In a filing, the three-judge committee said that it “agreed with most of the district courts analysis” on the legal issues. This included its disagreement to federal government claims that the prohibition of firearms for cannabis users is based upon precedents from the past.
DOJ argued that this ban was historically in line with the prohibitions against gun ownership for people suffering from mental illnesses. In its ruling, the court of appeals said that “the current gun policy cannot be justified” by this standard.
The lower court largely based his initial decision on an interpretation of a U.S. Supreme Court ruling in which the justices generally created a higher standard for policies that seek to impose restrictions on gun rights.
According to the ruling, any restrictions must conform with the original historical context in which the Second Amendment was ratified back in 1791.
In order to prove that this ban was consistent, the Justice Department referred to old case laws that prohibited Catholics, Loyalists, Slave Indians, and loyalists from owning guns.
Circuit court said, “the government has to show that non-intoxicated users of marijuana pose a future risk” in order to justify the policy. This inquiry is better suited to the district courts, as it may require fact-finding.
This opinion comes nearly a year after the Tenth Circuit heard oral arguments in the case, with judges questioning not only the firearms prohibition itself but also whether it was within the scope of the appeals panel’s power to review the underlying lower court’s decision. In the end they decided that they were in possession of that authority.
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 result of this development, the U.S. Supreme Court will be examining a number of cases which challenge the prohibition on firearms for those who smoke marijuana.
The Trump administration has asked the high court to hear one of five relevant cases to resolve conflicting lower court decisions on gun rights for cannabis consumers and other illegal drugs from owning firearms and uphold the prohibition.
In the request, the solicitor general reiterated his position that, despite recent appeals court decisions calling into question the constitutionality of the firearms ban for people who use cannabis—even in compliance with state law—the restriction is nevertheless lawful.
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.
A U.S. Court of Appeals panel of three judges for the Eighth Circuit vacated a conviction in July and remanded that case to a district judge, noting a retrial by a juror may be needed to decide whether or not cannabis actually caused the defendants to be dangerous.
By contrast, the Third Circuit earlier this month 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 panel of appeals ruled that while disarming someone who is a drug addict may not be necessary if he poses a threat to other individuals, the past history in gun laws requires district courts to make an individual decision.
Judges in that case noted that historical restrictions on gun ownership under “drunkenness and lunacy laws” in the U.S. “were still always based on an ‘individualized assessment’ rather than a categorical judgment.”
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. This court permitted the defendant to withdraw his guilty plea and dismissed the charges.
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Meanwhile, at an NRA conference in 2023, Trump suggested there might be a link between the use of “genetically engineered” marijuana and mass shootings. In 2023, Trump said that the Food and Drug Administration would investigate a variety of unproven and controversial factors as possible causes for the continuing scourge in the US of mass shootings.
We need to investigate whether psychiatric medication, including genetically-engineered cannabis, or other drugs can cause psychotic episodes that result in gun violence.
Hunter Biden was the son of former President Joe Biden. A federal jury convicted him last year of breaking a statute for buying and having a firearm when he was using crack cocaine. Two Republican congressmen challenged the basis of that conviction, with one pointing out that there are “millions of marijuana users” who own guns but should not be prosecuted.
Medical marijuana patients, legislators, and advocacy organizations have all been confused by the situation. The NRA’s lobbying arm said recently that the court rulings on the cannabis and guns issue have “led to a confusing regulatory landscape” that have impacted Americans’ 2nd Amendment rights.
While some states passed legislation to further limit gun rights in marijuana-related situations, others have attempted to maintain them. 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.
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 2nd Amendment rights of medical marijuana patients, but the governor added that he’d like to see even more sweeping change on the federal level.
Below you can read the most recent filings from the DOJ in the gun and marijuana case.Â
Images courtesy of Rawpixel and Philip Steffan.
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