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A federal appeals court heard oral arguments on Thursday in a case concerning the constitutionality of the federal ban keeping medical marijuana patients from purchasing or possessing firearms.
A three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit listened and asked questions as attorneys for Florida medical cannabis patients and the Justice Department argued their sides of the case, which have been fleshed out in multiple briefings over the course of more than a year.
Will Hall, who is representing the plaintiffs, said in his opening remarks that there are two main considerations at hand that demonstrate the unconstitutionality of the federal ban. Multiple courts outside of the Eleventh Circuit have already determined that the prohibition is unconstitutional.
Hall’s first argument was that, regardless of the legality of cannabis use, precedent holds that simply committing a crime on its own does not inherently exclude people from their Second Amendment rights. The second is that the Supreme Court has created a new threshold for gun restrictions that renders them unconstitutional if there is not a historical analogue consistent with the amendment’s original 1791 ratification. Banning people who use medical cannabis is inconsistent with that historical context, Hall contended.
The Justice Department attorney recognized that “there were not widespread illegal drugs at the founding—that’s not something that happens until the turn of the 20th century.” But he argued that early laws restricting gun rights over drunkenness and mental illness represent historical analogues that are consistent with the purpose and intent of the federal gun ban for people who consume cannabis regularly.
In a prior briefing, “it was undisputed that the conduct that plaintiffs wish to engage in is a violation of federal law. And obviously, it has been for 50 years,” the DOJ attorney said. “I think it’s also significant that we’re talking about a violation not just of the law, but a violation that involves the use of intoxicating substances. It’s undisputed here that those substances involve the impairment of cognition, judgment [and] other skills that are essential to the safe handling of firearms.”
There was also discussion of what constitutes a “law abiding” citizen whose Second Amendment rights are protected. Judge Robert Luck, who was appointed by former President Donald Trump, pointed out to the DOJ attorney that there seems to be a disconnect in characterizing state-registered medical cannabis patients as not law abiding, given that a federal rider annually renewed each year since 2014 prevents DOJ intervention in state medical cannabis programs and legal states have “completely blessed” certain cannabis activity.
“How can we say they’re not law abiding under that legal infrastructure that exists as it does right now?” he asked.
The government’s attorney downplayed the significance of the appropriations rider, stating that it’s “geographically and temporally limited.”
But Luck said “it just seems to be hard to say someone’s not law abiding, where they are abiding by the law of their state, with the the imprimatur of the federal government that, ‘We are not going to prosecute you for right now, until we decide to change our mind about that.’ And the rider has been renewed “not just one time, but have been reaffirmed constantly by the federal government.”
There seemed to be mutual agreement among the judges and parties that one factor that could help inform a ruling is a separate upcoming Supreme Court case, United States v. Rahimi, that concerns whether a person with a domestic violence injunction against them can be summarily disarmed. A federal circuit court ruled that they cannot, and the case is now set for initial oral arguments in the Supreme Court in November.
Where that case overlaps with the cannabis and gun rights issue is that it would clarify whether a person who is not law abiding for any reason can be systematically denied Second Amendment rights. There was discussion among the parties about potentially delaying a ruling until they court is able to see how that plays out, but that hasn’t been decided yet and the timing for next steps is currently unclear.
“I thought it went well overall in that obviously we had a panel that was well-prepared, very engaged, very interested in this topic,” Hall told Marijuana Moment in a phone interview on Friday.
Judges “were definitely grappling with a lot of the questions that other other courts are as well—open questions that have been left out by the Supreme Court cases in this area,” he said, adding that there were “very fair and reasonable questions and things that the court probably will look for more guidance from the Supreme Court.”
“I thought it went very well, and I appreciated all the obvious time and attention the court gave to it,” Hall said.
Meanwhile, Thursday’s oral hearing also touched on a U.S. Court of Appeals for the Fifth Circuit ruling in Daniels v. United States from August that found the ban preventing people who use marijuana from possessing firearms is unconstitutional, even if they consume cannabis for non-medical reasons.
DOJ had already advised the Eleventh Circuit court that it felt the ruling was “incorrectly decided,” and the department’s attorney reaffirmed that it’s the government’s belief that “there are some reasons to be uncertain about the foundations” of the appeals court decision.
Hall said what the plaintiffs in his case, Florida Commissioner of Agriculture, et al., Appellants v. Attorney General of the United States, et al., are asking is “a very limited holding—even more limited than Daniels.”
“We agree with the reasoning and Daniels, but Daniels was a wholly illegal user of marijuana,” he said. “We’re only asking for declaratory relief as it applies to state law-compliant medical marijuana patients who we believe are distinct. And even if they’re not, there’s no analogue for them.”
The U.S. District Court for the Western District of Oklahoma also ruled in February that the ban prohibiting people who use marijuana from possessing firearms is unconstitutional, with the judge stating that the federal government’s justification for upholding the law is “concerning.”
Also, in the U.S. District Court for the Western District of Texas, a judge ruled in April that banning people who use marijuana from possessing firearms is unconstitutional—and it said that the same legal principle also applies to the sale and transfer of guns, too.
— Marijuana Moment is tracking more than 1,000 cannabis, psychedelics and drug policy bills in state legislatures and Congress this year. Patreon supporters pledging at least $25/month get access to our interactive maps, charts and hearing calendar so they don’t miss any developments. Learn more about our marijuana bill tracker and become a supporter on Patreon to get access. —
Days before the oral hearing, it was reported that the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) sent a letter to Arkansas officials saying that the state’s recently enacted law permitting medical cannabis patients to obtain concealed carry gun licenses “creates an unacceptable risk,” and could jeopardize the state’s federally approved alternative firearm licensing policy.
Shortly after Minnesota’s governor signed a legalization bill into law in May, the agency issued a reminder emphasizing that people who use cannabis are barred from possessing and purchases guns and ammunition “until” federal prohibition ends.
In 2020, ATF issued an advisory specifically targeting Michigan that requires gun sellers to conduct federal background checks on all unlicensed gun buyers because it said the state’s cannabis laws had enabled “habitual marijuana users” and other disqualified individuals to obtain firearms illegally.
Meanwhile, attorneys for President Joe Biden’s son Hunter—who has been indicted on a charge of buying a gun in 2018 at a time when he’s disclosed that he was an active user of crack cocaine—have previously cited the court ruling on the unconstitutionality of the federal ban, arguing that it applies to their client’s case as well.
Republican congressional lawmakers have filed two bills so far this session that focus on gun and marijuana policy.
Rep. Brian Mast (R-FL), co-chair of the Congressional Cannabis Caucus, filed legislation in May to protect the Second Amendment rights of people who use marijuana in legal states, allowing them to purchase and possess firearms that they’re currently prohibited from having under federal law.
Senate Majority Leader Chuck Schumer (D-NY) has committed to attaching that legislation to a bipartisan marijuana banking bill that advanced out of committee last month and it pending floor action.
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