DOJ Acting Attorney General Todd Blanche has signed an order rescheduling marijuana from its current Schedule I classification to Schedule III, which, among other things, will impact state-level medical marijuana laws.
The move comes as the Supreme Court is deliberating on a case called U.S. v. Hemani, where the DOJ appealed a Fifth Circuit decision that held the federal ban on gun possession by “unlawful” drug users was unconstitutional as it applied to Ali Danial Hemani, who was convicted of possessing firearms while regularly consuming marijuana.
The website Marijuana Moment reports Solicitor General D. John Sauer sent a letter to the justices on Thursday telling them that the DOJ’s move “does not affect the proper resolution of this case.”
Ali Danial Hemani’s “criminal liability depends on the law that was in effect at the time of the offense rather than the law in effect now,” the solicitor general wrote. “At the time of respondent’s offense, marijuana was classified as a Schedule I controlled substance. Even under the final order, moreover, respondent’s marijuana would remain a Schedule I controlled substance because it was neither incorporated into an FDA-approved drug product nor covered by a state medical marijuana license.”
“To the extent the Court wishes to avoid deciding the constitutionality of 18 U.S.C. 922(g)(3) as applied to medical marijuana,” Sauer said, referring to the federal statute that bars people who use illegal drugs from purchasing or possessing guns, “it could limit its decision in this case to Schedule I marijuana and could leave for a future case the statute’s constitutionality as applied to Schedule III marijuana.”
It could do that, but if the justices rule in favor of Hemani, then the Court is almost guaranteed to conclude that 922(g)(3) is unconstitutional as it applies to Schedule III medical marijuana.
I agree with Sauer that today’s announcement by Blanche doesn’t really change anything in the Hemani case. Based on how things went for the government during oral arguments, I think there’s a strong likelihood of the Court ruling that the federal prohibition on “unlawful” drug users possessing firearms is too broad, at least as it applies to the plaintiff in this particular case.
As I wrote after oral arguments took place in early March, even some gun control supporters concluded that Hemani is likely to get a favorable ruling, though they’re not particularly pleased by that potential outcome.
Jake Charles, the Pepperdine University law professor who used to head up the Duke Center for Firearms Law, posted a lengthy piece on the Center’s blog this week where he concluded that he has “trouble readily locating—at least from the arguments—another vote in the government’s camp” beyond Justice Samuel Alito and Chief Justice John Roberts.
Charles says his “wildly speculative guess is that he gets somewhere between 6-7 votes,” which is exactly where most 2A supporters have come down as well (including me). I think 7-2 is the most likely outcome, but I could a 6-3 decision with Thomas or Kagan joining the minority in declaring 922(g)(3) valid when it comes to “unlawful” marijuana use.
I don’t think we’re going to see unanimity among the conservatives on the Court, but my suspicion is that Justices Sotomayor, Kagan, and Jackson will side with Hemani; not because of an innate support for the right to keep and bear arms, but because the government failed to prove that marijuana users are inherently so dangerous that they must be forbidden from possessing firearms. Today’s move by the Trump administration may not have a direct impact on Hemani, but it is further proof that, like it or not, marijuana usage has become so prevalent that an outright prohibition is both politically and legally untenable.
Editor’s Note: The radical Left will stop at nothing to enact their radical gun control agenda and strip us of our Second Amendment rights.
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