The Justice Department has informed a federal appeals court that it believes a separate court’s ruling in a marijuana and gun rights case was “incorrectly decided” as it seeks a favorable decision in a related lawsuit.
In a one-page brief filed on Friday, the federal government notified judges on the U.S. Court of Appeals for the Eleventh Circuit that the separate U.S. Court of Appeals for the Fifth Circuit recently deemed the law barring cannabis consumers from buying or possessing firearms to be unconstitutional.
DOJ contests the decision in that case, which is also relevant to a lawsuit that the Eleventh Circuit is considering. That suit, originally filed by former Florida Agriculture Commissioner Nikki Fried (D), more narrowly concerns the rights of state-registered medical cannabis patients to own guns, but the basic structure of the case is the same.
With oral arguments scheduled for next month in the Florida case, the Justice Department said the separate ruling last week “departs from the numerous circuit and district court decisions upholding § 922(g)(3)’s constitutionality.”
“In deviating from those precedents, Daniels relied on the Fifth Circuit’s prior decision in United States v. Rahimi, a case in which the Supreme Court recently granted the government’s petition for a writ of certiorari,” it said, referencing a case where the court maintained that laws prohibiting people convicted of domestic violence from possessing guns are unconstitutional.
“For the reasons given in the government’s brief in this case, Daniels is incorrectly decided and § 922(g)(3) accords with the Second Amendment,” the Justice Department said.
An attorney representing Florida medical cannabis patients in the case told Marijuana Moment on Friday that “we have reviewed the [Fifth Circuit] decision and will be prepared to address it at oral argument.”
The federal firearms ban for cannabis consumers has been challenged in a number of courts. While the Fifth Circuit is the most powerful court to declare the prohibition unconstitutional, two federal district courts have similarly reached that conclusion as well.
The core argument at play is based on a U.S. Supreme Court ruling last year that says any firearm restrictions must be consistent with the historical context of the Second Amendment’s original 1791 ratification.
In its decision last week, the Fifth Circuit said that the government failed to effectively argue that the ban has a meaningful historic analogue, dismissing its position that gun restrictions imposed in the late 18th and early 19th century on mentally ill, “dangerous” and actively intoxicated individuals meet the high standard set by the Supreme Court action.
For now, the Fifth Circuit decision renders the ban unlawful in the states of Louisiana, Mississippi and Texas. The Eleventh Circuit, meanwhile, has jurisdiction over Alabama, Florida and Georgia. If that latter court ultimately upholds the constitutionality of the ban, that would set the stage for the Supreme Court to intervene amid conflicting circuit holdings.
For what it’s worth, attorneys for President Joe Biden’s son Hunter—who has been charged with 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 ruling from the U.S. District Court for the Western District of Oklahoma that deemed the firearms ban for marijuana consumers unconstitutional, arguing that it applies to their client’s case as well. The Justice Department is appealing the district court’s decision to the U.S. Court of Appeals for the Tenth Circuit.
In that federal case, Judge Patrick Wyrick dismissed an indictment against a man who was charged under the statute in 2022 after police discovered cannabis and a handgun in his vehicle during a traffic stop. The court had similarly determined that the law banning “unlawful” users of marijuana from possessing firearms violates the Second Amendment of the Constitution.
Also, in the U.S. District Court for the Western District of Texas, a judge ruled that laws prohibiting the sale and transfer of guns to people who use marijuana is also unconstitutional.
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Despite the recent rulings, the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has maintained that the marijuana firearms ban is unambiguous and enforceable, including in states where marijuana has been legalized.
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, even as ATF maintains that it must enforce the ban, the agency recently updated its own cannabis employment policy.
The update make it so applicants who’ve grown, manufactured or sold marijuana in compliance with state laws while serving in a “position of public responsibility” will no longer be automatically disqualified—whereas those who did so in violation of state cannabis policies won’t be considered.
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.
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.
Meanwhile, a law that went into effect in Arkansas this month now clarifies that medical marijuana patients can obtain concealed carry licenses for firearms.
Read the federal government’s latest brief in the marijuana and gun rights case below: