Several Republican senators are questioning 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.
In a series of interviews with MEDCAN24, the GOP lawmakers discussed the intersection of Second Amendment rights and drug policy as the U.S. Supreme Court is considering taking up several pending cases on the issue—which centers around a federal statute known as Section 922(g)(3) that some say is inconsistent with conservative principles.
Why would I be more concerned about that than someone who drinks alcohol? Thom Tillis said that cannabis users can possess firearms.
Dan Sullivan said he would “look closely” at specific cases pending in front of the Supreme Court. He is, however, “highly sceptical of this ban,” “given marijuana’s legality in my state and the number of guns in my home state.”
A statute cannot override a Second Amendment Right, he stated. It’s a constitutional rights because of this.
However, on the other hand, Sen. Ron Johnson, R-WI, said that, in general, he has “a problem with this whole legalization of cannabis and cars,” suggesting he thinks that marijuana reform will increase traffic safety concerns, despite contradictory evidence.
Johnson, speaking to MEDCAN24 said: “Obviously it’s not a good idea to use a gun if you are under any influence.”
The cases that the justices of the High Court were to consider at their closed-door session on Friday do not concern people who have been actively intoxicated by marijuana or any other substance. They are about the laws which prohibit anyone who has used cannabis to own or purchase a firearm.
Sen. Cynthia Lummis, R-WY, gave a nuanced answer to the question regarding the cases that are pending in front of the Supreme Court. She said that if it were her position as a justice and she wanted to duck the subject she would take on one that the Justice Department prioritizes that includes cocaine as well marijuana.
But I didn’t hear anything,” said she. “It will reveal a lot if the cert is only given to one of them.”
Sullivan said, on his own, that the cannabis reformers might not want to test their theories with the cocaine case, which the Trump Administration is asking the Supreme Court to hear.
In the meantime, a man prosecuted for lying on federal forms about firearm purchases after admitting that he smoked marijuana recently asked the Supreme Court to review the issue as they are currently considering other cannabis consumer gun cases.
The new petition to the high court comes as the Justice Department is separately asking it to dismiss one of multiple pending cases concerning marijuana and gun rights, in large part because it expects the justices to make a precedent-setting ruling on the issue.
In August, the Tenth Circuit ruled that the government must prove that people who use marijuana “pose a risk of future danger” if it wants to justify applying a law banning cannabis consumers from owning firearms.
In 2023, the Justice Department filed an appeal against that decision and sent it to Tenth Circuit. The three-judge group said they agreed with most of the analysis of the District Court, and that included the challenge of federal claims to the ban on firearms by cannabis consumers based on historical precedent.
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 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 imposed must conform with the original 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.
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. It may include 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. They ultimately determined that the appeals panel did have 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 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 July ruling, 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.
By contrast, the Third Circuit last 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.
It was ruled by the appeals panel that, while “a person need not harm someone or threaten harm to justify disarming him,” “the history of gun law in this country demands that district courts make individual judgments to determine that disarming drug users is necessary to reduce the risk that they would be a danger to other people.”
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. The man was allowed to withdraw his plea, and the court ordered the dismissal of the criminal charges against him.
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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. 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 common psychiatric medications, genetically modified cannabis, and other narcotics are leading to psychotic breakdowns” which lead to violence with guns.
Hunter Biden, son of then-President Joe Biden, was found guilty by a jury in federal court of buying and possessing an illegal firearm while consuming 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.
Some states, however, have implemented their own gun laws that either restrict or attempt to protect the rights of marijuana users to carry firearms. 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.
The LCB contributed reporting from Washington, D.C.
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