The DOJ Claims Medical Marijuana Patients Who Own Guns 'Endanger the Public in Multiple Ways'

Defending the federal ban on gun possession by drug users, the government's lawyers seem increasingly desperate.

When the Supreme Court rejected a challenge to the federal law that disarms people who are subject to domestic violence restraining orders last month, its ruling was narrow. "Our tradition of firearm regulation allows the Government to disarm individuals who present a credible threat to the physical safety of others," Chief Justice John Roberts wrote for the majority in United States v. Rahimi, which overturned a 2023 decision by the U.S. Court of Appeals for the 5th Circuit. The justices left for another day the question of whether the Second Amendment allows the government to disarm people without evidence of such a threat, based merely on the existence of a restraining order that "explicitly prohibits the use, attempted use, or threatened use of physical force"—one option under 18 USC 922(g)(8), the statute at the center of the case.

At the same time, the Court provided reason to think it might be more skeptical of other restrictions on gun possession by explicitly rejecting the government's claim that only "responsible" citizens have Second Amendment rights. This month, the justices nevertheless vacated a 2023 decision in which the 5th Circuit overturned a marijuana user's conviction for illegal gun possession, remanding the case for further consideration in light of Rahimi. That move, combined with a passing comment in Rahimi, suggests that the Court might be inclined to uphold the federal ban on gun possession by cannabis consumers and other illegal drug users.

The 5th Circuit case, United States v. Daniels, involves a Mississippi man who was caught with guns and the remains of a few joints during a routine traffic stop in 2022. Patrick Darnell Daniels Jr. was convicted of violating 18 USC 922(g)(3), which makes it a felony for an "unlawful user" of a "controlled substance" to receive or possess a firearm, and sentenced to nearly four years in prison. The 5th Circuit deemed his prosecution unconstitutional, rejecting the government's argument that it was "consistent with this Nation's historical tradition of firearm regulation"—the test that the Supreme Court established in the 2022 case New York State Rifle & Pistol Association v. Bruen.

In defending Section 922(g)(3), the Justice Department has argued, among other things, that cannabis consumers are ipso facto "irresponsible," which it said means they are not part of "the people" whose right to "keep and bear arms" is guaranteed by the Second Amendment. And even if they are part of "the people," the government said, their irresponsibility places them in a category of individuals who historically were denied gun rights.

Solicitor General Elizabeth Prelogar pressed the same argument in Rahimi, which involved a defendant with an extensive history of violence. "This case focuses on the 'not responsible citizens' principle," Prelogar said during oral arguments in that case last November. "In this context, we think that history and tradition show that it applies to those whose possession of firearms would pose an unusual danger, beyond the ordinary citizen, with respect to harm to themselves or harm to others."

Roberts was openly skeptical of that argument. "Responsibility is a very broad concept," he noted, suggesting it could encompass someone who fails to comply with recycling requirements or sets a "bad example" by "yelling at a basketball game in a particular way." He reiterated that "the problem with responsibility is that it's extremely broad," and "what seems like…irresponsibility to some people might seem like…not a big deal to others."

Robert expressed the same concern in his Rahimi opinion. "In holding that Section 922(g)(8) is constitutional as applied to Rahimi, we reject the Government's contention that Rahimi may be disarmed simply because he is not 'responsible,'" the chief justice wrote. "'Responsible' is a vague term. It is unclear what such a rule would entail. Nor does such a line derive from our case law."

In Bruen and the landmark 2008 Second Amendment case District of Columbia v. Heller, Roberts said, "We used the term 'responsible' to describe the class of ordinary citizens who undoubtedly enjoy the Second Amendment right. But those decisions did not define the term and said nothing about the status of citizens who were not 'responsible.' The question was simply not presented."

That passage seems like a blow to the Biden administration's defense of Section 922(g)(3). But in an 11th Circuit brief filed last week, the government's lawyers argue that the appearance is deceptive, citing another comment in Rahimi. "While we do not suggest that the Second Amendment prohibits the enactment of laws banning the possession of guns by categories of persons thought by a legislature to present a special danger of misuse," Roberts wrote, "we note that Section 922(g)(8) applies only once a court has found that the defendant 'represents a credible threat to the physical safety' of another."

That is not actually true, since Section 922(g)(8) also applies to people who are subject to court orders with boilerplate language prohibiting the use or threat of force, even when they have no history of violence or threats. But the main point, as the Justice Department sees it, is that the Court suggested the Second Amendment allows the government to disarm "persons thought by a legislature to present a special danger of misuse." That principle, of course, is highly congenial to the government, since an unqualified version of it would allow legislators to disarm any group they did not like.

"Although it declined to adopt the term 'irresponsible,'" the Justice Department's 11th Circuit brief says, the Court "did not 'suggest that the Second Amendment prohibits the
enactment of laws' disarming 'categories of persons thought by a legislature to present a special danger of misuse.'" Since the government has "used the term 'irresponsible' as a shorthand for those individuals whose possession of firearms would endanger themselves or others," the brief argues, Rahimi's rejection of "the 'not responsible citizens' principle" that Prelogar urged does not really matter.

In this telling, "irresponsible" is essentially the same as "dangerous," which makes you wonder why the government invested so much effort in defending a principle it now says it does not need. Still, Roberts' suggestion that the Second Amendment gives legislators broad discretion to decide which people "present a special danger of misuse" does not bode well for marijuana users who argue that Section 922(g)(3) is unconstitutional.

The 11th Circuit case, Cooper v. Attorney General, involves Florida patients who use marijuana for symptom relief in compliance with state law. They say they should not have to choose between their state-authorized medicine and their constitutional right to armed self-defense.

Florida Gov. Ron DeSantis, a conservative Republican who is not otherwise known for his enlightened views on drug policy, agrees. "The governor stands for protecting Floridians' constitutional rights—including 2nd Amendment rights," his office said in 2022, when this lawsuit was filed. "Floridians should not be deprived of a constitutional right for using a medication lawfully."

DeSantis reiterated that position last January, when he was still vying with Donald Trump for the Republican presidential nomination. Asked about Section 922(g)(3) during an appearance in New Hampshire, DeSantis replied: "I don't think that's constitutional, to be honest with you. If you're using a legal product, I don't see how that can nullify a constitutional right."

While Florida and 37 other states recognize marijuana as "a legal product," the federal government does not. And according to the Biden administration, that distinction somehow renders cannabis consumers so dangerous to themselves or others that they cannot be trusted with firearms—unlike, say, recreational drinkers or patients who use psychoactive pharmaceuticals prescribed by their doctors.

In its Cooper brief, the Justice Department re-ups its illogical claim that a blanket ban on gun possession by cannabis consumers is analogous to early laws that prohibited people from publicly carrying or firing guns while intoxicated. Those laws addressed a specific hazard—drunken gun handling—with narrow restrictions. They applied only in public and only to people who were actively intoxicated. They did not apply to private possession of firearms, let alone impose a categorical ban on gun ownership by drinkers.

In Daniels, the 5th Circuit made short work of this faulty analogy. "Under the government's reasoning," it said, "Congress could ban gun possession by anyone who has multiple alcoholic drinks a week…based on the postbellum intoxicated carry laws. The analogical reasoning Bruen prescribed cannot stretch that far."

The government's lawyers are nevertheless hoping they can resuscitate this argument based on Rahimi's reaffirmation of a point the Court made in Bruen: that a historical precedent can be "relevantly similar" to a contemporary law even if it is not a "dead ringer" or "historical twin." The Court's Second Amendment decisions, Roberts emphasized in Rahimi, "were not meant to suggest a law trapped in amber." But even so, the analogy between all cannabis consumers, including those who never pick up a firearm while intoxicated, and drunken gun handlers, a reckless subset of drinkers, is plainly inapt.

The government's Cooper brief supplements that dubious comparison by averring that medical marijuana users who own guns "endanger the public in multiple ways." How so? They "may mishandle firearms—or use firearms to commit crimes—because of 'drug-induced changes in physiological functions, cognitive ability, and mood.'" They "may 'commit crime in order to obtain money to buy drugs'—and thus pose a danger of using firearms to facilitate such crime." And "violent crime may occur as part of the drug business or culture."

That alarming portrait bears little resemblance to the plaintiffs in this case. Vera Cooper is a widow and small-business owner in her 70s who uses marijuana to treat chronic knee pain and insomnia. Nicole Hansell is an Afghanistan veteran who uses marijuana to treat PTSD and severe anxiety. Each of them would like to purchase a firearm for self-protection, but under Section 922(g)(3) they would be committing a felony punishable by up to 15 years in prison if they did that. Neill Franklin is a retired police officer who has a concealed-carry permit and qualifies for Florida's medical marijuana program. He would like to use marijuana for pain relief, but not at the cost of surrendering his Second Amendment rights.

The Justice Department implicitly portrays Cooper, Hansell, and Franklin as potential public menaces because they might be inclined to handle guns while stoned, commit crimes to support their drug habits, or (for some reason) buy marijuana from violent drug dealers instead of state-licensed dispensaries. Even the U.S. Court of Appeals for the 8th Circuit, which in April rejected a marijuana user's facial challenge to Section 922(g)(3), recognized the implausibility of such assumptions.

The 8th Circuit conceded that "not every drug user or addict will terrify others, even with a firearm." It is "exceedingly unlikely," for example, that "the 80-year-old grandmother who uses marijuana for a chronic medical condition and keeps a pistol tucked away for her own safety" will "pose a danger or induce terror in others." But according to the Biden administration, we all should be afraid of that grandmother.

The 5th Circuit and three other federal courts, meanwhile, have concluded that Section 922(g)(3) prosecutions were unconstitutional even when they involved recreational users. Those courts did not credit the Justice Department's argument that anyone who uses marijuana, regardless of his character or how he actually behaves, "endanger[s] the public in multiple ways." It remains to be seen whether the Supreme Court will be more receptive to that bizarre claim.