I didn’t intend to write multiple posts today about the Supreme Court and the growing number of Second Amendment-related cases that are awaiting consideration by the justices once they get back from their summer recess, but there’ve been a number of new developments in these lawsuits in recent days…. including a filing by Solicitor General D. John Sauer in a case dealing with a man convicted of possessing firearms as an “unlawful user of drugs”.
As the website Marijuana Moment reports, though there are several cases dealing with this same issue pending before SCOTUS, Sauer has one particular case in mind that he believes the Court should take up.
With the multiple competing legal cases resulting in differing rulings in federal appeals courts across the country, DOJ last week requested that SCOTUS review one in particular that it described as “archetypal” of the issue related to federal code 922(g)(3), which precludes users of unlawful drugs from having guns or ammo.
The case “presents an important Second Amendment issue that affects hundreds of prosecutions every year: whether the government may disarm individuals who habitually use unlawful drugs but are not necessarily under the influence while possessing a firearm,” U.S. Solicitor General D. John Sauer, an appointee of President Donald Trump, said.
The solicitor general reiterated his position that, despite recent appeals court decisions calling into question the constitutionality of the firearms ban for people who use cannabis—even in compliance with state law—the restriction is nevertheless lawful.
The solicitor general correctly points out that various appellate courts have come to different conclusions about the constitutionality of Section 922(g)(3), but I’m not sure that the case they’re pushing SCOTUS to accept is truly archetypal of the issue of unlawful users of drugs and gun possession.
One reason DOJ could be focused on the justices taking up Hemani in particular is that the defendant in that case is not only a cannabis user but also a user of cocaine who’s sold drugs in the past, according to court findings, which could make him less sympathetic in the eyes of the court. Defendants in the other cases were merely found in possession of both a firearm and marijuana.
Lawyers for the defendant in Hemani argued in a brief last month that the high court should decline the case.
But in its reply brief submitted to SCOTUS this week, the Justice Department said that “this case is the best vehicle available.”
“The government has filed petitions for writs of certiorari in four other cases presenting the same question… As those petitions explain, this case presents the Second Amendment issue more cleanly than [three other cases pending before SCOTUS] and involves a more developed record” compared to a fourth.
I’ve followed most of these 922(g)(3) cases, and I don’t think Hemani is any cleaner than, say, the Daniels case, which involves a man sentenced to several years in prison after he admitted to regularly smoking marijuana and owning firearms.
In fact, if SCOTUS is only going to accept one of these cases, I’d argue that Daniels is the best vehicle. It’s already been before the Supreme Court once before, though the Court remanded it back to the Fifth Circuit for further review in light of its decision in Rahimi. The appellate court concluded that while the statute is facially constitutional, it is not constitutional as it applies to Darnell Daniels, who the court described as only an occasional user of marijuana.
With President Trump saying he’ll make a decision on reclassifying marijuana from Schedule 1 to Schedule 3 in a few weeks, there may soon be a way for millions of medical marijuana patients to legally possess a gun. Still, almost half the country has decriminalized or legalized the recreational use of marijuana, and there are millions of other Americans who would still face the prospect of federal prison time for using cannabis while exercising their Second Amendment rights.
If the Supreme Court were to decide that, at a minimum, there needs to be an individualized finding of dangerousness before convicting someone of violating 922(g)(3), that would be a huge step in the right direction. Right now, though, it’s far from certain that SCOTUS will decide to take up the issue next term, or if it will allow the appellate court splits to grow even deeper before stepping in.
Editor’s Note: Unelected federal judges are turning our Second Amendment rights into privileges.
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