With President Trump signing an executive order aimed at rescheduling marijuana's classification as a Schedule I drug to Schedule III, medical marijuana will likely soon be legal at the federal level as well as the 40 states that already allow it. So what will that to to Section 922(g)(3) and its prohibition on gun possession by "unlawful" users of drugs?
In the case of Ali Danial Hemani, whose case will be taken up by the Supreme Court next year, not much. Hemani is accused of possessing guns as a recreational user of marijuana, and the DOJ continues to defend 922(g)(3)'s constitutionality as it is applied to his gun ownership. Solicitor General D. John Sauer's opening brief with SCOTUS in Hemani, though, essentially declares every user of marijuana to be a dangerous person, and my guess is that the justices are going to have some very pointed questions about that assertion when oral arguments take place in a few months from now.
President Trump's EO may have already had an impact in another lawsuit implicating the Second Amendment rights of medical marijuana users, though. In Cooper v. Bondi, the Eleventh Circuit Court of Appeals ruled that the federal government had not established a national tradition of barring medical marijuana users from possessing firearms, and remanded the case back to district court after the plaintiffs appealed the lower court's decision to dismiss their case.
The DOJ could have appealed that decision to the Supreme Court, and in early November Sauer requested an extension to file a cert petition in order to "continue consultation within the government and to assess the legal and practical impact of the court of appeals’ ruling." Justice Clarence Thomas granted that request and gave Sauer until December 17 to file his cert petition.
Well, we're now two days past that deadline and the Supreme Court's docket for Bondi v. Cooper doesn't show any cert petition filed on the 17th. It's possible that the Court's website simply hasn't caught up to the filing, but generally it only takes a day at the latest for the docket to be updated, so it's also possible that the DOJ has decided not to appeal the Eleventh Circuit's decision and allow the case to continue on in district court.
Cooper v. Bondi has yet to be decided on the merits, and the Eleventh Circuit noted that the DOJ might very well find a national tradition of banning individuals like medical marijuana users from exercising their Second Amendment rights as the case continues. With President Trump's move to speed up rescheduling of marijuana to Schedule III, though, I think it's going to be difficult, if not impossible, to do so.
Federal law allows for Schedule III drugs to be prescribed by a physician, so if and when the DEA officially reschedules marijuana, those with medical marijuana prescriptions will no longer be "unlawful" users. The DOJ could argue that until that rescheduling takes place the plaintiffs in Cooper are still out of luck, but doing so would go against the administration's intent.
The good news for Sauer is that he has some time to decide what to do about Cooper. In late October U.S. District Judge Allen Winsor granted the government's request to stay all proceedings in the case until after the Supreme Court releases its decision in Hemani, which likely won't happen until June. By then the DEA may have already completed its rescheduling of marijuana, and the Cooper case would most likely be dismissed on grounds of mootness.
If the DEA drags its heels and the Supreme Court's decision opens the door to other as-applied challenges of 922(g)(3), though, the Solicitor General and Attorney General Pam Bondi are going to have to make a decision of their own about whether to continue defending the ban on medical marijuana users exercising their Second Amendment rights.
Editor's Note: Christmas is coming a little early here at Bearing Arms!
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