The U.S. Supreme Court has approved a request from the government’s top lawyer that sought more time to consider a challenge to a February appeals court ruling around the federal prohibition on gun ownership by people who consume marijuana.
An order by Justice Brett Kavanaugh last week granted government lawyers an extension until June 5 to decide whether to appeal a February ruling from the U.S. Circuit Court of Appeals for the Eighth Circuit.
Solicitor General D. John Sauer had previously requested the extension, telling the high court that the government needed more time to consider the case.
“The Solicitor General has not yet determined whether to file a petition for a writ of certiorari in this case,” said Sauer’s three-page filing. “The additional time sought in this application is needed to continue consultation within the government and to assess the legal and practical impact of the court of appeals’ ruling.”
The case concerns a defendant, Keshon Daveon Baxter, who was found in possession of both a firearm and a bag of marijuana. The government charged him under 18 U.S.C. § 922(g)(3), which prohibits gun ownership by “unlawful” users of controlled substances.
Baxter argued in district court that the prohibition was itself illegal, contending both that “unlawful” use was too vague in the statute to be enforceable and also that the government’s ban on drug users’ possession of firearms was unconstitutional under the Second Amendment.
The lower court rejected both arguments—a ruling Baxter appealed to the U.S. Circuit Court of Appeals for the Eighth Circuit.
It a February opinion, an Eighth Circuit panel upheld the portion of the district court’s decision denying Baxter’s vagueness claim but reversed the lower court’s ruling on the constitutionality of the firearms ban. However, judges wrote that there were insufficient factual findings in the record “for this Court to review Baxter’s as-applied Second Amendment challenge.”
Nevertheless, the Eighth Circuit wrote, “We reverse the district court’s ruling on Baxter’s as-applied Second Amendment challenge and remand to the district court for further proceedings consistent with this opinion.”
Had the Supreme Court not granted the government’s extension, in the case, U.S. v. Baxter, a decision whether to appeal the Eighth Circuit ruling would have been due May 6.
Sauer, an appointee of President Donald Trump, formally assumed his role as solicitor general earlier this month. He previously helped represented Trump in his landmark case on presidential immunity.
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