The U.S. Supreme Court granted a request by the U.S. government’s leading lawyer for more time in order to examine a legal challenge of a February ruling from an appeals courts regarding federal restrictions on the ownership of guns by marijuana consumers.
Last week, Justice Brett Kavanaugh granted the government’s lawyers a deadline extension of until Friday 5th June to decide if they will appeal an earlier ruling by the U.S. Circuit Court of Appeals of Eighth Circuit.
Solicitor general D. John Sauer requested this extension in a previous request, telling the court that government needs more time to examine the case.
Sauer said in a three-page document that “the Solicitor General is not yet certain whether to submit a petition seeking a writ certiorari for this case.” This application seeks additional time to allow for further consultation within government, and also to evaluate the impact on the law and the practical side of court of appeals ruling.
Keshon David Baxter is the defendant in this case. He was caught with both a handgun and a marijuana bag. He was charged under 18 U.S.C. § 922(g)(3), which prohibits gun ownership by “unlawful” users of controlled substances.
Baxter asserted in district courts that this prohibition is itself unconstitutional. She argued both that “unlawful use” was too vague to be enforced and that government restrictions on the possession of guns by drug users were in conflict with the Second Amendment.
The lower court rejected both arguments—a ruling Baxter appealed to the U.S. Circuit Court of Appeals of Eighth Circuit.
In a Feb. opinion, a panel of the Eighth Circuit upheld the part of the district’s court decision that denied Baxter’s claim of vagueness but overturned the lower court’s verdict on the constitutionality the firearms prohibition. The judges wrote, however, that the factual evidence in the case was not sufficient for this Court to consider Baxter’s Second Amendment challenge as applied.
Eighth Circuit, in its opinion, wrote: “We reverse district court’s judgment on Baxter as it applied the Second Amendment and remand district court to further proceedings consistent this opinion.”
If the Supreme Court had not allowed the extension of the Government in this case U.S. v. BaxterThe decision on whether or not to appeal against the Eighth Circuit’s ruling was due by May 6
Sauer is a Trump appointee who officially took on his new role as Solicitor General earlier this month. He had previously represented Trump’s landmark case regarding presidential immunity.
Second Amendment activists at the Firearms Policy Coalition(FPC), who have tracked a few cannabis-related legal cases, wrote to MEDCAN24 last week in an email saying that their group had been “encouraged’ by the government filing.
“We are encouraged that the solicitor general is reconsidering the government’s position following President Trump’s ‘Protecting Second Amendment Rights’ Executive Order,” the group said at the time. We have explained this in various briefs, such as that in U.S. DanielsThe SS 922(g)(3) should be held unconstitutional.” § 922(g)(3) should thus be held unconstitutional.”
FPC said that “this conclusion is supported with thorough research and we hope government litigation in these cases will adequately account for law’s lack legal and historical basis.”
One risk to appealing the ruling is that if the Supreme Court does take the case, justices may in fact rule unfavorably to the government, possibly cementing that § 922(g)(3) is—in at least some cases—unconstitutional.
A number of federal courts in recent months have cast doubt on the legality of § 922(g)(3), finding generally that while the ban on gun ownership among drug users may not be entirely unconstitutional, there’s scant historical precedent for such a broad restriction of Second Amendment rights on an entire a category of people.
Earlier this year, for example, 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.
In another recent case, an Eighth Circuit panel dismissed a three-year prison sentence against a person convicted for possession of a firearm while being an active user of marijuana. Judges in that case ruled that government’s prohibition on gun ownership by drug users is justified only in certain circumstances—not always.
Nothing in our traditions allows disarmament merely because [the defendant] “Belongs to a group of people, drug-users, which Congress categorically declared dangerous”, their decision said.
In another case earlier this year, a Fifth Circuit panel ruled that the firearms ban was unconstitutional as applied to least one defendant. That ruling came on the heels of a string of other judicial decisions casting doubt on the legality of the ban.
A federal judge in El Paso, for instance, 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 court permitted the defendant to withdraw his plea, and then ordered the dismissal of the criminal charges against him.
Another panel of judges, on the U.S. Court of Appeals for the Tenth Circuit, heard oral arguments in November in the government’s appeal of a district court ruling that deemed the gun ban unconstitutional.
In that case, the majority of discussion in the oral arguments was focused on whether there were any underlying disputes regarding the application or the face of the gun ban. In this case, like in others, the focus was on whether or no one in that courtroom had marijuana in their system while they were in possession of an firearm.
In a separate federal court case, Department of Justice (DOJ) lawyers recently made arguments that the ongoing firearm restriction for cannabis users is “analogous to laws disarming the intoxicated” and other historical laws “disarming many disparate groups that the government believed presented a danger with firearms.”
That brief was the latest response to a case filed by a Pennsylvania prosecutor who’s suing the federal government over its ban on gun ownership by cannabis users. It came two weeks after lawyers for the official, Warren County District Attorney Robert Greene, asked the U.S. District Court for the Western District of Pennsylvania to allow the matter to proceed to trial.
In a number of the ongoing cases, DOJ has argued that the prohibition on gun ownership by marijuana users is also supported by a recent U.S. Supreme Court decision, U.S.According to the ruling, the government has the right to restrict the Second Amendment Rights of those with domestic violence restraint orders.
DOJ has made such arguments, for example, in favor of the firearms ban in a case in a case in the U.S. Court of Appeals for the Eleventh Circuit. The group, which includes Florida medical cannabis users, claims that the Second Amendment is being violated by the fact that it’s illegal to buy firearms as long as you are still using marijuana as medicine.
Under President Joe Biden, the DOJ has consistently claimed that patients with medical marijuana who own firearms are “a threat to public safety”, “pose an increased risk of suicide,” and more likely commit crimes in order “to finance their drug addiction.”
Uncertainty remains about how Trump’s administration will deal with the cases. At a 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.
DOJ has claimed in multiple federal cases over the past several years that the statute banning cannabis consumers from owning or possessing guns is constitutional because it’s consistent with the nation’s history of disarming “dangerous” individuals.
The Justice Department, in 2023, told the U.S. Court of Appeals of the Third Circuit, that precedents “comfortably support” the ban. 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.
Hunter Biden was convicted last year by a federal court of violating law when he bought and possessed a gun as a crack cocaine user. 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 National Rifle Association’s (NRA) 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’ Second Amendment rights.
The advocacy group said that marijuana use was no longer restricted to youth counterculture or indigenous religious practices. It now included a variety of people using it as a recreational or medicinal drug. Many of these people are law-abiding, productive and responsible members of the community who want to exercise their rights to bear and keep arms.
Some states, however, have passed laws that either restrict gun rights or attempt to protect them in relation to marijuana. Recently, for example, 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.
Officials said people with firearms who become cannabis patients in states that allow it are not “expected” to turn those guns over, but those who want to “follow federal law” and “not be in violation” of the law must “decide to divest” themselves of their firearms.
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 Second Amendment rights of medical marijuana patients, but the governor added that he’d like to see even more sweeping change on the federal level.
Beshear told a press briefing that the best way to handle this issue was not to just focus on it, but change the marijuana schedule. We need to alter the marijuana policies of the federal government.
Trump-Appointed U.S. Attorney Says His ‘Instinct’ Is Medical Marijuana Dispensary Shouldn’t Be ‘In The Community’ As He Warns Of Federal Prosecution