Biden DOJ Pushes To Dismiss Gun Rights Lawsuit From Pennsylvania Prosecutor Who Uses Medical Marijuana

In a new federal court filing defending the government’s ban on cannabis users owning guns, the Department of Justice (DOJ) argues that the ongoing restriction is “analogous to laws disarming the intoxicated” and other historical laws “disarming many disparate groups that the government believed presented a danger with firearms.”

“Taken together, these laws establish the principle that governments can disarm groups deemed dangerous with firearms,” the DOJ’s new brief asserts. “But even if a closer connection in the reason for dangerousness were required, that connection is provided by the laws targeting the intoxicated and mentally ill…who were disarmed based on concerns about impaired judgment and lack of self-control.”

The DOJ brief is the latest development in a case filed by a Pennsylvania prosecutor suing the federal government over its ban on gun ownership by cannabis users. It comes two weeks after lawyers for the official, Warren County District Attorney Robert Greene, asked the U.S. District Court for the Western District of Pennsylvania to allow the matter to proceed to trial.

DOJ, meanwhile, is asking the court to dismiss the case.

In the plaintiffs’ earlier brief, attorneys for Greene and others argued that the firearm prohibition for cannabis users is distinct from other laws prohibiting gun ownership by potentially dangerous individuals, noting that the other restrictions “only permitted the deprivation of one’s Second Amendment rights after a hearing, providing for due process, and then, only temporarily.”

While the government frames its marijuana gun ban as similarly temporary, plaintiffs said that in practice the prohibition is much broader.

“While the Government disingenuously contends throughout its brief that the challenged regulations only ‘impose a temporary prohibition on firearms possession and receipt during the time period that a person is actively engaged in unlawful drug use,’” the plaintiffs’ last brief said, “the truth of the matter, which the Government elects not to disclose to this Court, is that…an unlawful user includes those ‘even though the substance is not being used at the precise time the person seeks to acquire a firearm or receives or possesses a firearm.’”

“Plaintiffs are arguing that a flat ban on their possession and use of firearms because they either use or want to use medical marijuana pursuant to Pennsylvania law to treat their symptoms is unconstitutional,” it continued. “To say that an individual loses their right to keep and bear arms for self-defense and other lawful purposes merely because they may be ‘intoxicated’ at some point in time, by virtue of using a lawful medicine pursuant to state law, eludes logic.”

DOJ, for its part, argues in its new brief, first reported by Law360, that Greene’s suit should be thrown out for a number of other procedural reasons, saying it fails to properly state a claim under the Second Amendment and misstates the legal standard for challenges to the law. It also contends that another plaintiff in the case, the Second Amendment Foundation, lacks standing because the suit requires the participation of individual members of the group who are harmed by the prohibition on gun ownership by cannabis users.

Ultimately, the new government filing adds, plaintiffs’ challenge to the ban “fails as a matter of law by challenging a constitutional statute.”

The original lawsuit from Green and other plaintiffs says that while the district attorney “intends to lawfully purchase, possess, and utilize firearms and ammunition so that he may exercise his constitutional right to keep and bear arms for self-defense and all other lawful purposes,” he’s forbidden from doing so because of his status as a state-certified medical cannabis patient.

Government lawyers made similar arguments last month when asking the court to throw out the suit.

As the government argued earlier this year in a separate case around cannabis and guns, DOJ has said in new Pennsylvania case that the prohibition on gun ownership by marijuana users is also supported by a recent U.S. Supreme Court decision, U.S. v. Rahimi, that upheld the government’s ability to limit the Second Amendment rights of people with domestic violence restraining orders.

Lawyers for Greene in the Pennsylvania case, however, have pointed out that even Rahimi says the “Second Amendment may only be burdened once a defendant has been found to pose a credible threat to the physical safety of others.”

Lawyers in a separate federal appeals court case also faced off last month over when the government may lawfully disarm someone for using marijuana, with DOJ arguing in that dispute that a person’s recent use of the drug is indeed sufficient to establish that they’re in violation of the law and should not legally be able to possess a gun.

Judges on the U.S. Court of Appeals for the Fifth Circuit, however, pushed back on the government’s position, noting at oral argument that a recently published opinion within the same judicial circuit held that while “some limits on a presently intoxicated person’s right to carry a weapon” may be constitutional, “disarming a sober person based on past substance usage” is not.

That case, U.S. v. Daniels, was set to be considered by the U.S. Supreme Court earlier this year but was among a number of firearms-related cases remanded back to lower courts following a separate Supreme Court decision about firearms and domestic violence.

A Fifth Circuit panel previously ruled in favor of the individual in the case, who faced a conviction after admitting to having used cannabis while in possession of a gun. The court said the federal statute known as Section 922(g)(3), which prevents someone who is an “unlawful user” of an illegal drug from buying or possessing firearms, was unconstitutional.

DOJ has made similar arguments in favor of the firearms ban in a case in a case in the U.S. Court of Appeals for the Eleventh Circuit. In that matter, a group of Florida medical cannabis patients contends that their Second Amendment rights are being violated because they cannot lawfully buy firearms so long as they are using cannabis as medicine, despite acting in compliance with state law.

The Biden administration, meanwhile, argues that medical marijuana patients who possess firearms “endanger public safety,” “pose a greater risk of suicide” and are more likely to commit crimes “to fund their drug habit.”

The Justice Department has claimed in multiple federal cases over the past several years that the statute banning cannabis consumers from owning or possessing guns is constitutional because it’s consistent with the nation’s history of disarming “dangerous” individuals.

Last year, for example, the Justice Department told the U.S. Court of Appeals for the Third Circuit that historical precedent “comfortably” supports the restriction. Cannabis consumers with guns pose a unique danger to society, the Biden administration claimed, in part because they’re “unlikely” to store their weapon properly.

Earlier this year, President Joe Biden’s son Hunter was convicted by a federal jury of violating statute by buying and possessing a gun while an active user of crack cocaine.

Two Republican congressmen challenged the basis of that conviction, with one pointing out that there are “millions of marijuana users” who own guns but should not be prosecuted.

Meanwhile, some states have passed their own laws either further restricting or attempting to preserve gun rights as they relate to marijuana. Recently, for example, a Pennsylvania lawmaker introduced a bill meant to remove state barriers to medical marijuana patients carrying firearms.

Colorado activists also attempted to qualify an initiative for November’s ballot that would have protected the Second Amendment rights of marijuana consumers in that state, but the campaign’s signature-gathering drive ultimately fell short.

The U.S. District Court for the Western District of Oklahoma ruled last year 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.”

In U.S. District Court for the Western District of Texas, a judge ruled last April that banning people who use marijuana from possessing firearms is unconstitutional—and it said the same legal principle also applies to the sale and transfer of guns.

Last August, meanwhile, 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 Gov. Tim Walz (D) signed a legalization bill into law last year, ATF 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.

The Hawaii attorney general’s office also recently released data showing that, of the roughly 500 firearm permit applications denied by officials in the state last year, more than 40 percent were rejected because of applicants’ status as medical marijuana patients.

Read the full DOJ brief in the case below:

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