Patriot Brief
Marijuana rescheduling complicates enforcement of federal gun restrictions.
DOJ arguments increasingly conflict with changing federal drug policy.
Courts may soon force a reckoning on gun rights for medical marijuana users.
The federal government is quietly backing itself into a legal corner on guns and marijuana. While the administration moves to downgrade marijuana from Schedule I to Schedule III, the Justice Department is simultaneously telling the Supreme Court that any marijuana user should be treated as inherently dangerous for purposes of firearm possession. Those two positions don’t sit comfortably together — and the courts are beginning to notice.
The Hemani case exposes the tension clearly. By defending Section 922(g)(3) as applied to a recreational marijuana user, DOJ lawyers are leaning on a sweeping theory that drug use alone justifies stripping constitutional rights. That argument may have been easier to sustain when marijuana was officially treated like heroin. It becomes far harder to defend when the same substance is on track to be legally prescribed by doctors.
The Eleventh Circuit’s handling of Cooper v. Bondi adds another pressure point. The government’s apparent decision not to immediately appeal suggests hesitation, not confidence. If marijuana becomes a Schedule III drug, medical users would no longer be “unlawful” under federal law, undercutting the very foundation of the ban.
At that point, the issue won’t be whether the DOJ can keep defending 922(g)(3) as applied to medical marijuana users. It will be whether doing so makes any sense at all.
From Bearing Arms:
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.
…
Photo Credit: AP Photo/Manuel Balce Ceneta
