Next Friday, the U.S. government's brief in U.S. v. Hemani is due before the Supreme Court, and the Solicitor General will flesh out the government's arguments about why Section 922(g)(3), which bars gun possession for "unlawful" users of drugs, does not violate the rights of Ali Danial Hemani, who is accused of possessing guns as an admitted user of marijuana.
Hemani's prosecution began during the Biden administration in 2023, but the Trump administration has continued the federal government's appeal of a Fifth Circuit decision that found Hemani's Second Amendment rights were violated when he was convicted of violating Section 922(g)(3). The appellate court held that while laws banning gun possession while actively intoxicated are presumably constitutional, there is no national tradition of banning gun ownership for users of intoxicating substances, lawful or not.
The website Marijuana Moment reports that "newly disclosed guidance from the Biden administration" shows the DOJ was concerned about the vulnerability of 922(g)(3) when it came to prosecuting marijuana users.
The newly disclosed guidance from the Biden administration that was rescinded in September under Trump states that prosecutors “may pursue charges under 18 U.S.C. § 922(g)(3) or 18 U.S.C. § 922(d)(3) based on the unlawful use of, or addiction to, marijuana because the proclamation does not change the fact that marijuana use violates federal law,” referring to the statutes that make it a federal crime to possess a gun while being a cannabis consumer.
However, in order to “mitigate potential litigation risk,” U.S. attorneys “should be cautious before proceeding under these firearms provisions and consult with EOUSA’s Controlled Substances Coordinator prior to doing so.” That seems to be something of an admission of the legal vulnerability of the hotly contested statute, which has been the subject of rulings by several federal appeals courts in recent months.
As Marijuana Moment points out, that guidance was rescinded a couple of months ago by the DOJ, which frees up U.S. Attorneys to filed 922(g)(3) charges without first consulting with the Executive Office for U.S. Attorneys' Controlled Substances Coordinator.
William Sack, director of legal operation at SAF, told Marijuana Moment that “it’s not at all surprising to us that the Biden administration was aware of the shaky constitutional underpinnings of the ban on gun ownership for folks that use medical marijuana,” referring to the newly disclosed guidance.
“And it was right to expect litigation over it,” he said.
Apparently Pam Bondi's DOJ has no similar qualms about the constitutional underpinnings of 922(g)(3).
The memo itself is interesting, but at best it shows, as MM claims, that some within Biden's DOJ were concerned that some 922(g)(3) prosecutions would be vulnerable to a legal challenge and wanted to pick and choose which potential cases should be prosecuted. The Biden administration maintained, as the Trump administration does, that the law is a valid exercise of federal power and does not intrude on we the people's right to keep and bear arms.
Several courts, including the Third, Fifth, and Eighth Circuits, have disagreed with that contention. The Third and Eighth Circuits have adopted the position that 922(g)(3) is only constitutional after there's been a finding of dangerousness involving the defendant and their gun possession and drug use, while the Fifth Circuit's take makes Section 922(g)(3) unconstitutional in almost every circumstance.
As I've previously discussed here at Bearing Arms, SCOTUS accepted the Hemani case but turned away two other cases from the Eighth Circuit that DOJ presented to the Court. In one case a defendant was ultimately found to pose a danger and his 2A rights were taken away, but in the second case the defendant was able to demonstrate he wasn't a danger and the charges were dismissed.
The Court could have held on to both of those cases until after Hemani was resolved, which makes me wonder if a majority of the Court isn't already leaning towards adopting at least the rough contours of the Eighth Circuit's reasoning.
I don't expect SCOTUS to suddenly declare that 922(g)(3) is facially null and void, but I do think the Court is going to have to wrestle with the fact that medical marijuana, while illegal at the federal level, has been approved by well over half the states, and recreational marijuana is also legal at the state-level in almost half the country.. Moreover, the federal government has largely turned a blind eye to these state-level conflicts with federal law, but gun possession by marijuana users remains one of the few exceptions.
The Eighth Circuit's rationale is compatible with what SCOTUS has said about temporarily depriving "dangerous" people of firearms in Rahimi, while also acknowledging the lack of a historic tradition of banning all users of intoxicating substances from exercising their Second Amendment rights. The Fifth Circuit's reasoning is probably based on an even closer reading of the national tradition of gun ownership, but I'm not convinced that was is essentially a conservative Supreme Court will adopt a more libertarian view of the right to keep and bear arms as it applies to drug users in general.
