Second Amendment advocates are rightfully proud of the work we've done to get permitless carry laws adopted in 29 states, which is a testament to the enduring popularity of the right to keep and bear arms without the need to obtain a government-issued permission slip. The vast majority of these states also allow for medical marijuana use (and in some permitless carry states, recreational use as well), but under federal law it's illegal for those medical marijuana patients to exercise their Second Amendment rights.
In all, 40 states allow for medical use of cannabis, and despite the fact that marijuana is still illegal under federal law its rare for the feds to prosecute someone for possessing a small amount for their own personal use. Prosecutions involving gun-owning marijuana users are a little more common, and the constitutionality of the statute is at the heart of the Hemani case that will be argued before the Supreme Court next year.
The DOJ recently filed its opening brief in Hemani, and somewhat to my surprise, Solicitor General D. John Sauer made no attempt whatsoever to recognize and reckon with that reality. Instead, the government takes the position that all "unlawful" users of drugs, even those eating a THC gummy they obtained with a doctor's note to help counter the side effects of chemotherapy, are "dangerous people" who can be deprived of their right to keep and bear arms.
Indeed, unlawful drug users pose a greater danger than users of alcohol, which was lawful at the founding and remained so for most of American history. Congress and the Executive have determined that marijuana and other Schedule I drugs “ha[ve] a high potential for abuse” and “a lack of accepted safety for use of the drug or other substance under medical supervision” that justifies their criminal prohibition, unlike alcohol.
Further, courts of appeals have uniformly determined that a person is a “user” of a controlled substance within the meaning of Section 922(g)(3) only if he engages in the habitual or regular use of a controlled substance. That interpretation reflects the ordinary meaning of Section 922(g)(3)’s text. In this context, the verb “use” means “to take or consume (an alcoholic drink, a narcotic drug) regularly or habitually.” And court of appeals cases addressing Second Amendment challenges to Section 922(g)(3) have generally involved defendants who admitted to using drugs at least weekly. Just as laws concerning habitual drunkards applied to individuals with a habit of getting drunk, Section 922(g)(3) applies only to individuals with a habit of using drugs unlawfully.
True, but that definition still applies to a grandmother in Florida who eats a gummy every day to help keep her chemo-induced nausea at bay, the prosecutor in Pennsylvania who obtained a medical marijuana card, and millions of other Americans who are using marijuana in compliance with the laws of their state.
Sauer's argument that Congress and the Executive Branch have classified marijuana as Schedule I might also be moot by the time oral arguments in Hemani take place, with President Trump "strongly considering" reclassifying the drug to Schedule III; the same classification as Tylenol with codeine.
To be fair, Ali Danial Hemani didn't possess a medical marijuana card, and if the Supreme Court decides to issue a narrow ruling that would apply only to his case the issue might not ever come up. But considering the Court is holding on to several other 922(g)(3) cases, I'd say the justices' opinion will have broader applicability, and I wouldn't be surprised in the slightest if one or more members of the Court question the Solicitor General about his argument that virtually all marijuana users can be considered dangerous enough to disarm without violating their Second Amendment rights.
A coalition of groups opposing marijuana legalization has weighed in with SCOTUS as well, arguing in an amicus brief that "marijuana use substantially increases one’s risk of developing long-lasting diagnoses of schizophrenia and psychosis." Of course, alcohol has also been associated with increased risk of schizophrenia too, though the amicus brief claims that "Alcohol’s relationship with mental distress typically ends when the user is no longer feeling its effects." Regular imbibers (and even those who abuse alcohol) are, of course, free to purchase firearms under federal law.
Though medical marijuana isn't directly implicated in Hemani, there is another case that could soon reach the Supreme Court that's explicitly about that issue. In fact, the federal government has a Wednesday deadline to file a cert petition in Bondi v. Cooper, or else leave unchallenged an Eleventh Circuit Court of Appeals decision that the government has "failed to show that disarming medical marijuana users is consistent with this Nation’s history and tradition of firearm regulation.” That case was remanded back to the district court, so this won't be the DOJ's last opportunity to appeal, but it will be very interesting to see if the DOJ takes this particular fight to SCOTUS now or decides to duke it out with the plaintiffs in district court for a second time.
I know many 2A orgs have criticized the DOJ for defending the National Firearms Act's taxation and registration requirements, but in my opinion the continued defense of Section 922(g)(3) in virtually all applications is equally deleterious to our Second Amendment rights. From a common sense perspective; if someone using powerful opioids with a doctor's prescription can legally purchase, possess, and carry a firearm, someone smoking a joint or eating a THC gummy with a doctor's approval should be able to do the same. And from a constitutional standpoint, multiple appellate courts have ruled there really is no tradition of banning all users of intoxicating substances (even those that are illegal at the federal level) from possessing firearms.
Whether or not SCOTUS agrees with those courts remains to be seen, but the DOJ has made it abundantly clear that, for the moment anyway, it's the position of the administration that the gummies Grandma eats to alleviate the symptoms of Parkinson's could land her in federal prison unless she gets rid of any firearms in her possession.
