The Supreme Court's unanimous ruling in U.S. v. Hemani—finding that the Second Amendment prohibits criminalizing gun possession by cannabis consumers—is now influencing related prosecutions.
On Monday, the Court declined to hear two government petitions from the Fifth Circuit: the Patrick Daniels case and the Kindle Terrell Sam case, both involving marijuana users prosecuted for firearm possession. The Fifth Circuit in Daniels had held that the Second Amendment bars banning gun possession by someone not "under an impairing influence." The Court also remanded the Erik Matthew Harris case—where Harris had lost in the Third Circuit—back to lower courts for "further consideration" in light of Hemani.
Kostas Moros, director of legal research and education for the Second Amendment Foundation, said: "While many questions remain to be answered, recreational use of marijuana alone, without more, is not a constitutionally acceptable reason to deny Second Amendment rights."
The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), which enforces § 922(g)(3)—the statute barring illegal drug users from possessing firearms—said it is "reviewing the decision and assessing its impact" and that "additional guidance will be provided soon." In May, ATF posted a proposed revised Form 4473 acknowledging medical marijuana's federally legal status after Acting Attorney General Todd Blanche's April order moved state-licensed medical cannabis products and FDA-approved marijuana to Schedule III of the Controlled Substances Act. A broader rescheduling hearing is set for this month. ATF's interim final rule narrowing the definition of "unlawful user of or addicted to any controlled substance" under § 922(g)(3) is open for public comment through June 30.
The majority opinion said the government "asks us to conclude that anyone who regularly uses marijuana is categorically violent and dangerous without any further showing." The Court rejected the government's historical analogies to laws targeting the mentally ill and habitual drunkards. In December, attorneys general for 19 states and Washington, D.C. filed a brief urging the Court to uphold § 922(g)(3); Smart Approaches to Marijuana (SAM) and 21 other groups did the same. The ACLU—whose attorneys represent Hemani—and the NRA argued the ban was an unconstitutional categorical infringement. Solicitor General D. John Sauer contended in April that rescheduling should not affect the Hemani ruling; he also argued marijuana users "pose a greater danger" than alcohol drinkers. Hemani is a joint American and Pakistani citizen with alleged ties to Iranian entities hostile to the U.S.
