Marijuana Moment
The Justice Department is urging the U.S. Supreme Court to uphold the constitutionality of a federal law preventing marijuana users from legally owning or possessing guns—insisting that, even if cannabis is rescheduled under an executive order issued by President Donald Trump, its use makes people uniquely dangerous and deserving of disarmament.
In a reply brief in the pending case, U.S. vs. Hemani, DOJ reiterated its prior arguments defending the federal statute Section 922(g)(3), maintaining that there are sufficient historical analogues consistent with the nation’s founding that justify barring cannabis consumers from having firearms. To that end, Trump-appointed U.S. Solicitor General D. John Sauer said justices should reverse an appeals court ruling that found the ban violates the Second Amendment.
“For decades—including when respondent violated Section 922(g)(3)—marijuana has been a Schedule I drug based on determinations that, inter alia, ‘marijuana had a high potential for abuse’ and lacks ‘accepted safety,’” Sauer said.
“The federal government is currently taking steps to reschedule marijuana under Schedule III to facilitate medical marijuana and CBD research ‘while preserving the Congress’s intent to restrict the sale of products that pose serious health risks,’” he acknowledged, while adding that the rulemaking process “is not yet complete.”
To be sure, it’s been about two months since Trump signed an executive order directing Attorney General Pam Bondi to expeditiously finalize the process of moving marijuana from Schedule I to Schedule III of the Controlled Substances Act (CSA). The Justice Department told Marijuana Moment last month that it had no updates or comment on the status of the rulemaking.
“Respondent also urges that even if habitual users of other drugs could be deemed categorically dangerous, marijuana is too ubiquitous,” DOJ said in its latest brief. “But millions of Americans also regularly abuse opioids and cocaine. Whether marijuana is properly scheduled and how dangerous it is are questions the Controlled Substances Act leaves to the Executive Branch.”
In a footnote, the department also stressed that cannabis “remains a Schedule I drug, subject to the Controlled Substance Act’s most stringent restrictions.”
“That future rescheduling does not affect respondent’s constitutional defense against his conviction for a past offense,” it said. “Regardless, Schedule III classification reflects that a drug ‘has a potential for abuse,’ albeit ‘less than’ Schedules I and II, and that its abuse ‘may lead to moderate or low physical dependence or high psychological dependence.’”
The filing was submitted weeks after a series of cannabis and gun rights groups, including the National Rifle Association (NRA), filed amici briefs with the Supreme Court, urging it to pass final judgement that deems the federal firearms ban for cannabis users unconstitutional.
Central to the arguments from NRA and the drug policy organizations is that, based on separate Supreme Court precedent on gun restrictions, barring marijuana users from buying or possessing firearms lacks historical analogues consistent with the nation’s founding and is inconsistent with the increasing social acceptance of marijuana as states continue to legalize if for medical or recreational purposes.
ACLU attorneys representing Hemani have consistently made the case that the federal ban on gun ownership by marijuana consumers is nonsensical and unconstitutional—and that it’s made all the more confounding by the fact that Trump directed the expeditious finalization of a rule to move cannabis fto Schedule III of the CSA.
The Supreme Court is scheduled to hear oral arguments in the Hemani proceedings on March 2.
In the background, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) recently moved to loosen rules that bar people who consume marijuana and other illegal drugs from being able to lawfully purchase and possess guns by making it so fewer people would be affected.
The interim final rule from ATF seeks to update the definition of “unlawful user of or addicted to any controlled substance” under an existing policy that has been interpreted to deny Second Amendment rights to people who have used illegal substances a single time within the past year.
Last month, meanwhile, attorneys general for 19 states and Washington, D.C. filed their own brief siding with the federal government in the Hemani case, insisting that justices should maintain the current § 922(g)(3) statute.
Read more
