U.S. Department of Justice argues that "historical tradition" and law should defeat Warren County District Attorney Rob Greene's push to eliminate federal gun ban for medical marijuana users like him.
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Key Points
Warren County DA Rob Greene, a Republican, said in December that he would not run for reelection when current term expires in 2025 so he could focus on advocating for legalization of marijuana
Greene, who has a medical marijuana card, sued in federal court in Erie in January over federal law the prohibits medical marijuana users from having firearms
The U.S. Department of Justice has responded in court to Greene's lawsuit and request for a preliminary injunction in a case in which 2022 Supreme Court ruling is major factor
The Warren County district attorney's attempt to overhaul federal regulation of marijuana and firearms is becoming a debate over history as much as it is a battle over drug policy and the Second Amendment.
In responding to Rob Greene's lawsuit, filed in federal court in Erie, the U.S. Justice Department is contending that Greene has no foundation in the law or history as he argues that users of medical marijuana, like him, should be allowed to have firearms despite the federal prohibition otherwise.
Greene said history and the Constitution favor him when he sued in January and filed a request for a preliminary injunction in March.
"History is devoid of any laws demonstrating a tradition of disarming individuals for using a particular kind of medicine," such as cannabis, according to Greene's brief for a preliminary injunction.
The Warren County district attorney is seeking a preliminary injunction against the federal government in his lawsuit over the federal firearm prohibition for users of medical marijuana. The suit is filed in U.S. District Court in Erie, where the Justice Department is fighting his request. KEVIN WHITLOCK/MASSILLON INDEPENDENT
"History does not support this total bar on the right to keep and bear arms," according to the brief, which refers to the language of the Second Amendment.
In a brief filed on Monday, the Justice Department responded by arguing that the Second Amendment applies to law-abiding citizens and that the amendment has never prevented Congress from prohibiting "unlawful users" of controlled substances from possessing firearms — prohibitions codified in the federal Gun Control Act of 1968.
As long as the federal government continues to list marijuana as an illegal narcotic, holders of medical marijuana cards ― even if Pennsylvania and other states have have legalized medical marijuana — violate federal law if they possess guns, according to the Justice Department's brief. The department's lawyer, Jeremy S.B. Newman, said in the brief that history supports the federal government.
"Disarming unlawful drug users is consistent with the historical tradition of restricting firearms possession and use on the basis of intoxication and the historical tradition of disarming groups of people who would present a danger with firearms," according to the brief.
A case with a potentially wide reach
Greene's case is before U.S. District Judge Cathy Bissoon, who is based in Pittsburgh but hears cases in the Erie Division of the Pittsburgh-based U.S. District Court for the Western District of Pennsylvania. No hearing date has been set.
Disarming unlawful drug users is consistent with the historical tradition of restricting firearms possession and use on the basis of intoxication and the historical tradition of disarming groups of people who would present a danger with firearms.
U.S. JUSTICE DEPARTMENT LAWYER JEREMY S.B. NEWMAN, IN LEGAL BRIEF
Greene is the lead plaintiff as he sues with help from another plaintiff, the Washington state-based Second Amendment Foundation. They are suing the United States government, Attorney General Merrick Garland and the directors of the FBI and the Bureau of Alcohol, Tobacco, Firearms and Explosives.
The plaintiffs want Bissoon to set aside the federal law that bars users of medical marijuana from possessing firearms. The plaintiffs also want Bissoon to grant a preliminary injunction to temporarily ban enforcement of the law while she considers the underlying lawsuit.
Warren County District Attorney Rob Greene's case over medical marijuana and the Second Amendment is docketed in federal court in Erie.
The case is believed to be the first of its kind in the United States. A win for Greene would have a sweeping effect in Pennsylvania ― one of 38 states to legalize medical marijuana and a state where a half a million people have medical marijuana cards, according to Greene's court filings.
The Supreme Court's Bruen ruling as an influence
Greene, a Republican, was first elected in 2013 as district attorney of the largely rural, 38,000-resident Warren County. He said in late December that he would not seek reelection after his current term expires in 2025 so he could focus on advocating for legalization and regulation of marijuana.
Greene's lawsuit followed on Jan. 23. He said in the suit that he has refrained from possessing firearms since he got a Pennsylvania medical marijuana card in May 2023. The suit and other case documents do not detail Greene's medical condition.
The legal conflict at the core of Greene's case exists because marijuana is not legal nationwide despite the legalization of medical marijuana at some state levels. Marijuana remains a Schedule I drug, along with substances like heroin, under the U.S. Drug Enforcement Administration regulations. The Gun Control Act of 1968 prohibits "unlawful" users of Schedule I drugs from buying and possessing firearms.
Greene is taking up his challenge as the U.S. Supreme Court has shifted its approach to Second Amendment rights. Key to the strategy of Greene and his lawyers — including the Second Amendment Foundation's executive director, Adam Kraut — is their reliance on the Supreme Court's 2022 landmark ruling in the case of the New York State Rifle & Pistol Association Inc., et al, v. Bruen.
In a 6-3 decision, the Supreme Court in the Bruen case changed the standards for evaluating the constitutionality of gun-control measures in holding that the Second Amendment protects the ability of law-abiding citizens to carry firearms in public. History must drive the review of gun restrictions, Justice Clarence Thomas said in the majority opinion.
"To justify its regulation, the government may not simply posit that the regulation promotes an important interest," according to the majority opinion. "Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation."
That standard is what has led Greene and the Justice Department to invoke history as they establish their positions in U.S. District Court in Erie.
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