Amid a series of legal challenges, the Trump administration is asking the U.S. Supreme Court to take up a case on the federal government’s ban on users of marijuana and other illegal drugs from owning firearms and uphold the prohibition, saying it is consistent with the 2nd Amendment.
To that end, the DOJ solicitor general is urging SCOTUS to hear one of five relevant cases to resolve conflicting lower court decisions on gun rights for cannabis consumers.
With the multiple competing legal cases resulting in differing rulings in federal appeals courts across the country, DOJ last week requested that SCOTUS review one in particular that it described as “archetypal” of the issue related to federal code 922(g)(3), which precludes users of unlawful drugs from having guns or ammo.
The case “presents an important Second Amendment issue that affects hundreds of prosecutions every year: whether the government may disarm individuals who habitually use unlawful drugs but are not necessarily under the influence while possessing a firearm,” U.S. Solicitor General D. John Sauer, an appointee of President Donald Trump, said.
The solicitor general reiterated his position that, despite recent appeals court decisions calling into question the constitutionality of the firearms ban for people who use cannabis—even in compliance with state law—the restriction is nevertheless lawful.
Some lower courts have said the government’s blanket ban on gun and ammunition possession infringes on the Second Amendment—at least as applied to certain individual cases—because there’s no historical justification for such a broad restriction on an entire category of people.
But over recent years, various federal district and appeals courts have take differing approaches to the issue. As DOJ argued in its latest filing in the case, “the question presented is the subject of a multi-sided and growing circuit conflict.”
“The petition for a writ of certiorari [filed by Sauer in June] identified three sides of that conflict: The Seventh Circuit has upheld Section 922(g)(3); the Eighth Circuit has held it violates the Second Amendment unless the government can make a case-by-case showing justifying the drug user’s disarmament; and the Fifth Circuit has held that it generally violates the Second Amendment unless the drug user was intoxicated while possessing the firearm.”
“Since then, the conflict has deepened,” it said, referring to several other cases on the issue that are pending before the high court. And DOJ wants SCOTUS to focus on one case in particular to resolve what it called a “four-way circuit conflict”: U.S. v. Hemani.
One reason DOJ could be focused on the justices taking up Hemani in particular is that the defendant in that case is not only a cannabis user but also a user of cocaine who’s sold drugs in the past, according to court findings, which could make him less sympathetic in the eyes of the court. Defendants in the other cases were merely found in possession of both a firearm and marijuana.
Lawyers for the defendant in Hemani argued in a brief last month that the high court should decline the case.
But in its reply brief submitted to SCOTUS this week, the Justice Department said that “this case is the best vehicle available.”
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