Supreme Court Faces Split Over Gun Ban for Cannabis Users

Federal Courts Split on Marijuana and Firearms Law

The U.S. Department of Justice (DOJ) has formally acknowledged a “significant disagreement” among federal appeals courts regarding the constitutionality of banning firearm possession by marijuana users. In a recent Supreme Court filing, the DOJ urged the justices to address the issue, citing conflicting rulings across seven circuit courts.

At the heart of the debate is 18 U.S.C. § 922(g)(3), a federal statute that prohibits “unlawful users” of controlled substances—including cannabis—from owning or possessing firearms. While the DOJ asked the Court to reject one specific case (U.S. v. Baxter), it simultaneously recommended taking up another (U.S. v. Hemani), which it believes better encapsulates the constitutional questions at stake

Circuit Split and Constitutional Tests

According to the DOJ’s brief, the Third, Fifth, Sixth, Seventh, Eighth, Tenth, and Eleventh Circuits have all ruled on challenges to § 922(g)(3), each applying different constitutional frameworks. This divergence intensified after the Supreme Court’s landmark decision in New York State Rifle & Pistol Association v. Bruen (2022), which established a historical test for evaluating Second Amendment restrictions. You can read the Bruen decision here on the Supreme Court Website.

In Hemani, the defendant was convicted of possessing firearms while using cannabis and cocaine and engaging in drug sales. The Seventh Circuit upheld the statute pre-Bruen, but post-Bruen decisions from the Third, Fifth, and Eighth Circuits have found the law unconstitutional in many applications

The Seventh Circuit has since revisited its stance, concluding that historical laws barring gun ownership by the intoxicated or mentally ill are sufficiently analogous to § 922(g)(3). However, other courts have rejected this reasoning, arguing that the government must prove that non-intoxicated marijuana users pose a future danger to justify the ban.

Key Cases and Legal Reasoning

In U.S. v. Harrison, the Tenth Circuit sided with a lower court that dismissed charges against a man found with cannabis and a firearm during a traffic stop. The court ruled that the statute violated the Second Amendment, emphasizing that restrictions must align with historical precedent from the time of the Constitution’s ratification.

The Eleventh Circuit recently ruled in favor of medical marijuana patients seeking to retain their gun rights, while the Eighth Circuit vacated a conviction and called for a retrial to determine whether cannabis use made the defendant dangerous.

These rulings reflect a broader judicial trend toward individualized assessments rather than blanket bans. The Third Circuit, for example, held that courts must make “individualized judgments” to determine whether § 922(g)(3) is constitutional as applied to specific defendants. You can access the Third Circuit’s opinion here.

Broader Legal and Political Implications

The DOJ has argued that the statute is consistent with historical efforts to disarm “dangerous” individuals, citing precedents that barred Catholics, loyalists, slaves, and Native Americans from gun ownership—an approach criticized by some courts as outdated and discriminatory.

Meanwhile, the Biden administration has maintained that marijuana users pose heightened risks, including improper firearm storage and increased suicide potential. This stance was notably tested in the conviction of Hunter Biden, who was found guilty of possessing a firearm while using crack cocaine.

The issue has also sparked legislative responses. In Kentucky, the ATF warned residents that participation in the state’s medical marijuana program would disqualify them from firearm ownership under federal law. In response, bipartisan lawmakers introduced a bill urging Congress to amend federal law to protect gun rights for medical marijuana users.

Kentucky Governor Andy Beshear supported the effort but called for broader reform, including rescheduling marijuana under federal law. You can track the status of marijuana scheduling via the DEA’s Controlled Substances Act.

As the Supreme Court considers which case to take up, the outcome could reshape the intersection of cannabis policy and gun rights nationwide.

Komorn Law, established in 1993, has the experience and expertise to fight your case in a court of law from the district to federal court systems. So, when you’re ready to hire a lawyer who hates to lose, call the office at (248) 357-2550.