The federal appeals courts ruled on Monday that to be able to enforce a law that prohibits cannabis users from possessing firearms, the government would have had prove “a threat of future harm” by those who consume marijuana.
On Tuesday, in its opinion, the U.S. Court of Appeals of the Tenth Circuit sided up with a district court in Oklahoma that dismissed a criminal indictment of Jared Michael Harrison. Harrison had been charged there in 2022 when police in Oklahoma discovered a firearm and cannabis in Harrison’s vehicle after a traffic check.
Now, the case is being remanded by the court to this lower court. The lower courts determined that 922 (g) (3), the law that prohibits marijuana “unlawful users” from having firearms in their possession, was in violation of the Second Amendment of Constitution.
Justice Department filed an appeal in 2023 and sent it to Tenth Circuit. The three-judge panel agreed with the majority of the analysis of the district courts, and also their challenge of federal claims of precedents that support the prohibition of firearms for marijuana consumers.
DOJ made the argument that gun prohibitions for people with mental disorders are historically compatible with this new ban. In its ruling, the court of appeals said that “the current gun policy cannot be justified” by this standard.
We agree with Mr. Harrison and the District Court. According to the evidence before us, it is not clear that the laws disarming mentally ill people are comparable historical examples. The government suggests laws disarming the mentally ill reveal a principle that legislatures may disarm those who are not ‘responsible,’ ‘ordinary,’ or able to exercise ‘self-control.’ This analysis is based on concepts that the Supreme Court explicitly refuses to endorse.”
Further, the court said “Mr. Harrison is among ‘the People’ protected by the Second Amendment, so the government must justify § 922(g)(3) by showing it is consistent with our tradition of firearm regulation; § 922(g)(3) lacks a distinctly similar regulation despite addressing a persistent societal problem, which is relevant evidence it violates the Second Amendment as applied.”
The opinion was written by Judge Veronica Rossman. She noted that this court differs “only slightly” from that of the district court, because judges “understand that historical precedent supports a concept that legislators can disarm people who are believed to be a danger in the future.”
It said: “We further hold that the district court should inquire about the assertion of the government, that marijuana users who are not intoxicated pose a danger.”
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 on the Second Amendment must conform with the original context in 1791 when it was ratified.
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.
According to the circuit court’s ruling, “the Government must prove that marijuana users who are not intoxicated pose a danger for future harm” before it can support its current policy. The district court is the best place to conduct this inquiry which could involve fact finding.
It is nearly a full year since the Tenth Circuit held oral arguments on the case. Judges in that circuit questioned the constitutionality of both the gun ban and the ability of an appeals panel to examine the decision made by the lower court. In the end they decided that they were in possession of that authority.
In the meantime, the U.S. Court of Appeals, Eleventh District judges have recently ruled that medical cannabis patients can exercise their Second Amendment right to own firearms.
As a result of this development, the U.S. Supreme Court examines a number of cases which challenge the prohibition on firearms for those who smoke marijuana.
The Trump administration asked that the Supreme Court hear five cases in order to settle conflicting decisions of lower courts on the gun rights of cannabis users and those who use other illegal drugs and to uphold 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.
In a ruling last month, for instance, 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.
According to the Eighth Circuit, a recent Third Circuit judgment was different in that this new opinion says that 922(g),(3) does not “require” that every case be brought before the court.[s] “An individualized factual decision”, explaining that these determinations would not be needed if the Government could prove that a specific drug rendered an entire group of users hazardous.
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 “a person does not need to have injured someone, threatened harm or otherwise behaved dangerously in order to justify their disarmament,” history and gun laws require that “district court must make individualized judgements, concluding that disarming an addict is required to mitigate the risk he could pose to others.”
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.
—
MEDCAN24 tracks hundreds of marijuana, psychedelics, and drug policy legislation in state legislatures this year. Patreon members who pledge at least $25/month gain access to interactive maps, charts, and hearing schedules so that they do not miss anything.
Find out more about our marijuana law tracker. To gain access, become a Patreon supporter.
—
Meanwhile, at an NRA conference in 2023, Trump suggested there might be a link between the use of “genetically engineered” marijuana and mass shootings. Trump listed several controversial and unproven causes of the mass shootings that plague the United States. He said he’d direct the Food and Drug Administration to look into them.
He said: “We need to examine whether psychiatric medications, genetically modified cannabis, and other narcotics are contributing to psychotic episodes” which lead to violence.
Hunter Biden was the son of former President Joe Biden. A federal jury convicted him last year of breaking the law by purchasing and owning a weapon while 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.
Side Pocket Images. Image courtesy Chris Wallis.
MEDCAN24 could not exist without readers’ support. Please consider making a Patreon monthly pledge if you depend on our cannabis journalism for information.
