The Biden administration has once again found itself in federal court defending a ban preventing people who use marijuana from buying or possessing firearms, arguing that historical precedent “comfortably” supports the restriction and that cannabis consumers with guns pose a unique danger to society, in part because they’re “unlikely” to store their weapon properly before using marijuana.
In a brief submitted to the U.S. Court of Appeals for the Third Circuit on Wednesday, attorneys for the Justice Department responded to a series of prompts from the judges, asserting that the firearm ban for marijuana consumers is justified based on historical analogues to restrictions on the mentally ill and habitually drunk that were imposed during the time of the Second Amendment’s ratification in 1791.
The federal government has repeatedly affirmed that those analogues, which must be demonstrated to maintain firearm restrictions under a recent Supreme Court ruling, provide clear support for limiting gun rights for cannabis users. But several federal courts have separately deemed the marijuana-related ban unconstitutional, leading DOJ to appeal in several ongoing cases.
For the case before the Third Circuit, the government is defending the ban against Erik Matthew Harris, who was convicted of violating the federal statute prohibiting the possession of a firearm by a person “who is an unlawful user of or addicted to any controlled substance.” As the Daily Caller first reported, Harris’s legal representation also submitted a supplemental brief to the court on Wednesday that broadly disputes both the substance of the conviction under the statute, as well as the idea that there are relevant historical analogues to uphold the existing ban.
Many of the government’s arguments have been raised in prior court cases. For example, the Justice Department said that the answer to the court’s question about whether habitual recreational use of marijuana can produce schizophrenic-like mental illness is “yes,” and “for that reason, habitual drug users may lawfully be disarmed for as long as they continue to unlawfully use drugs.”
DOJ said there’s “demonstrated correlation between marijuana use and certain mental illnesses,” though it conceded that “the association is not necessarily causal.”
“Given the impairments caused by marijuana and other illegal drugs, the temporary disarmament of individuals who regularly use or are addicted to such drugs fits comfortably within ‘this Nation’s historical tradition of firearm regulation,’” it said, adding that the “danger to society posed by an armed drug user extends beyond the risk that he will mishandle firearms while under the influence of drug.”
“As explained, drug users are also more likely to use firearms to commit crimes to fund their drug habit, engage in violence as part of the drug business or culture, attack police officers who are investigating their drug crimes, and commit suicide,” DOJ said. “Those risks justify disarming habitual drug users even ‘between periods’ of drug intoxication,” as was the case with Harris.
“Indeed, even if a court were to consider only the risk that a person will misuse firearms while under the influence of drugs, Section 922(g)(3) complies with the Second Amendment because drug users who possess firearms are apt to retain possession while under the influence,” it continued. “This case is an example: Harris claimed to lose one of his firearms (potentially at a bar) on the same evening that he smoked marijuana and was drunk.”
“Users are unlikely to put their guns away before using drugs and retrieve them only after regaining lucidity,” it said. “And it is unclear how the government could reasonably administer a regime that permitted confiscation only during the several-hour period a person is intoxicated.”
“In short, although regulations addressing firearm possession by the mentally ill have evolved with societal and technological conditions, history confirms that ‘longstanding prohibitions on the possession of firearms’ by ‘the mentally ill,’ have a ‘well-established’ historical tradition,” the brief concludes.
The Justice Department asserted similar points during oral arguments in a separate but related case before the U.S. Court of Appeals for the Eleventh Circuit last month. That case focuses on the Second Amendment rights of medical cannabis patients in Florida.
Attorneys in both cases have also touched on a U.S. Court of Appeals for the Fifth Circuit ruling in Daniels v. United States from August that found the ban preventing people who use marijuana from possessing firearms is unconstitutional, even if they consume cannabis for non-medical reasons.
DOJ had already advised the Eleventh Circuit court that it felt the ruling was “incorrectly decided,” and the department’s attorney reiterated that it’s the government’s belief that “there are some reasons to be uncertain about the foundations” of the appeals court decision.
The U.S. District Court for the Western District of Oklahoma also ruled in February that the ban prohibiting people who use marijuana from possessing firearms is unconstitutional, with the judge stating that the federal government’s justification for upholding the law is “concerning.”
Also, in the U.S. District Court for the Western District of Texas, a judge ruled in April that banning people who use marijuana from possessing firearms is unconstitutional—and it said that the same legal principle also applies to the sale and transfer of guns, too.
Last month, meanwhile, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) sent a letter to Arkansas officials saying that the state’s recently enacted law permitting medical cannabis patients to obtain concealed carry gun licenses “creates an unacceptable risk,” and could jeopardize the state’s federally approved alternative firearm licensing policy.
Shortly after Minnesota’s governor signed a legalization bill into law in May, the agency issued a reminder emphasizing that people who use cannabis are barred from possessing and purchases guns and ammunition “until” federal prohibition ends.
In 2020, ATF issued an advisory specifically targeting Michigan that requires gun sellers to conduct federal background checks on all unlicensed gun buyers because it said the state’s cannabis laws had enabled “habitual marijuana users” and other disqualified individuals to obtain firearms illegally.
Meanwhile, attorneys for President Joe Biden’s son Hunter—who has been indicted on a charge of buying a gun in 2018 at a time when he’s disclosed that he was an active user of crack cocaine—have previously cited the court ruling on the unconstitutionality of the federal ban, arguing that it applies to their client’s case as well.
Republican congressional lawmakers have filed two bills so far this session that focus on gun and marijuana policy.
Rep. Brian Mast (R-FL), co-chair of the Congressional Cannabis Caucus, filed legislation in May to protect the Second Amendment rights of people who use marijuana in legal states, allowing them to purchase and possess firearms that they’re currently prohibited from having under federal law.
Senate Majority Leader Chuck Schumer (D-NY) has committed to attaching that legislation to a bipartisan marijuana banking bill that advanced out of committee last month and it pending floor action.
Meanwhile, Mast is also cosponsoring a separate bill from Rep. Alex Mooney (R-WV) this session that would more narrowly allow medical cannabis patients to purchase and possess firearms.
Read the Justice Department and Harris briefs in the Third Circuit marijuana and firearms case below: