DOJ Suggests ‘Frail And Elderly Grandmother’ Who Uses Medical Marijuana Could Own Gun—While Defending Overall Federal Ban
The U.S. Justice Department is again defending the federal law prohibiting people who use marijuana from owning or possessing firearms—in part by drawing a contrast between those affiliated with gangs and a hypothetical “frail and elderly grandmother” who uses medical cannabis.
In a brief filed with the U.S. Court of Appeals for the Eighth Circuit last week, attorneys for DOJ said judges should uphold the earlier denial of a motion to dismiss the case, U.S. vs. Baxter, where the defendant was convicted of violating a statute known as Section 922(g)(3).
As in multiple related cannabis and gun cases, the Justice Department argued that disarming people who use marijuana does not constitute a violation of the Second Amendment because the law is grounded in historical precedent with the country’s founding. Specifically, the federal government claimed there are relevant historical analogues prohibiting gun ownership by the mentally ill, those who induce terror and “habitual drunkards.”
“Because Baxter’s marijuana use makes him a particularly dangerous gun possessor, this Court should affirm the denial of his motion to dismiss,” DOJ said.
In defending its position, the department made repeated references to an earlier case that went before the Eighth Circuit, U.S. vs. Veasley, in which the court indicated that historical precedent might not justify disarming a “frail and elderly grandmother” who uses medical cannabis and keeps a gun for protection.
“Notably, however, disarmament of drug users is comparable to founding-era laws only if it is ‘limited to those who pose a danger to others,’” DOJ said in the latest filing. “The Second Amendment, for example, may tolerate disarmament of a PCP user but not a ‘frail and elderly grandmother’ who ‘uses marijuana for a chronic medical condition.’”
It later added that “this Court suggested an as-applied Second Amendment challenge might succeed for an ’80-year-old grandmother who uses marijuana for a chronic medical condition and keeps a pistol tucked away for her own safety,’” but DOJ argued that the standard does not apply in Baxter because the defendant was affiliated with a gang, was found to have THC metabolites in his system at the time of his arrest and posted on social media videos of him brandishing firearms, sometimes while allegedly consuming cannabis.
An “as-applied challenge focuses on Baxter’s conduct, and the record makes plain that Baxter is nothing like…the hypothetical grandmother discussed in Veasley,” it said.
“All told, the district court correctly concluded that Baxter ‘bears no resemblance to the ‘frail and elderly grandmother’ this Court envisioned in Veasley. Veasley makes clear that ‘at least some drug users and addicts fall within a class of people who historically have had limits placed on their right to bear arms.’ The district court correctly held that Baxter was among those drug users who may be disarmed based on their use of firearms to induce terror.”
“In Baxter’s case, the record amply shows that his marijuana use and resulting behavior are consistent with that of someone who is mentally ill and dangerous,” the brief said, adding that expert testimony from a former National Institute on Drug Abuse (NIDA) section chief suggested that “modern marijuana is ‘tremendously more potent’ due to genetic engineering.”
The filing in Baxter comes as the U.S. Supreme Court weighs the facts in a separate case challenging the constitutionality of the federal gun ban for cannabis consumers.
Last month, the National Rifle Association (NRA)–arguably the most influential gun rights lobbying group in the U.S.—joined top drug policy reform organizations and other interests in urging justices to declare the federal ban unconstitutional.
ACLU attorneys representing the defendant in Hemani have made the case that the federal ban on gun ownership by marijuana consumers is nonsensical and unconstitutional—and that it’s made all the more confounding by the fact that President Donald Trump directed the expeditious finalization of a rule to move cannabis from Schedule I to Schedule III of the Controlled Substances Act (CSA).
The Supreme Court is scheduled to hear oral arguments in the Hemani proceedings on March 2.
In the background, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) recently moved to loosen rules that bar people who consume marijuana and other illegal drugs from being able to lawfully purchase and possess guns by making it so fewer people would be affected.
The interim final rule from ATF seeks to update the definition of “unlawful user of or addicted to any controlled substance” under an existing policy that has been interpreted to deny Second Amendment rights to people who have used illegal substances a single time within the past year.
In December, meanwhile, attorneys general for 19 states and Washington, D.C. filed their own brief siding with the federal government in the Hemani case, insisting that justices should maintain the current § 922(g)(3) statute.
Also that month, Smart Approaches to Marijuana (SAM) and 21 other prohibitionist groups filed a brief, urging justices to uphold the constitutionality of the federal gun ban for people who use cannabis—which they claim is associated with violence and psychosis.
U.S. Solicitor General D. John Sauer, for his part, told the Supreme Court that people who use illegal drugs “pose a greater danger” than those who drink alcohol.
Meanwhile, the Biden administration was evidently concerned about potential legal liability in federal cases for people convicted of violating gun laws simply by being a cannabis consumer who possessed a firearm, documents recently obtained by Marijuana Moment show.
The previously unpublished 2024 guidance from former President Joe Biden’s Justice Department generally cautioned U.S. attorneys to use discretion in prosecuting federal cannabis cases, particularly for offenses that qualified people for pardons during his term. But one section seems especially relevant as the Supreme Court takes on a case challenging the constitutionality of the current federal gun statute.
With respect to Hemani, in a separate August filing for the case, the Justice Department also emphasized that “the question presented is the subject of a multi-sided and growing circuit conflict.” In seeking the court’s grant of cert, the solicitor general also noted that the defendant is a joint American and Pakistani citizen with alleged ties to Iranian entities hostile to the U.S., putting him the FBI’s radar.
If justices declare 922(g)(3) constitutional, such a ruling could could mean government wins in the remaining cases. The high court recently denied a petition for cert in U.S. v. Cooper, while leaving pending decisions on U.S. v. Daniels and U.S. v. Sam.
The court denied a petition for cert in Baxter, but that wasn’t especially surprising as both DOJ and the defendants advised against further pursing the matter after a lower court reinstated his conviction for being an unlawful user of a controlled substance in possession of a firearm.
Meanwhile, in recent interviews with Marijuana Moment, several Republican senators shared their views on the federal ban on gun possession by people who use marijuana—with one saying that if alcohol drinkers can lawfully buy and use firearms, the same standard should apply to cannabis consumers.
Separately, the U.S. Court of Appeals for the Tenth Circuit last year sided with a federal district court that dismissed an indictment against Jared Michael Harrison, who was charged in Oklahoma in 2022 after police discovered cannabis and a handgun in his vehicle during a traffic stop.
The case has now been remanded to that lower court, which determined that the current statute banning “unlawful” users of marijuana from possessing firearms violates the Second Amendment of the Constitution.
The lower court largely based his initial decision on an interpretation of a Supreme Court ruling in which the justices generally created a higher standard for policies that seek to impose restrictions on gun rights.
In the U.S. Court of Appeals for the Eleventh District, judges recently ruled in favor of medical cannabis patients who want to exercise their Second Amendment rights to possess firearms.
As a recent report from the Congressional Research Service (CRS) explained the current legal landscape, a growing number of federal courts are now “finding constitutional problems in the application of at least some parts” of the firearms prohibition.
In another ruling, a three-judge panel for the U.S. Court of Appeals for the Eighth Circuit vacated a defendant’s conviction and remanded the case back to a district court, noting that a retrial before a jury may be necessary to determine whether cannabis in fact caused the defendant to be dangerous or pose a credible threat to others.
The Third Circuit separately said in a published opinion that district courts must make “individualized judgments” to determine whether 922(g)(3) is constitutional as applied to particular defendants.
A federal court in October agreed to delay proceedings in a years-long Florida-based case challenging the constitutionality of the ban on gun ownership by people who use medical marijuana, with the Justice Department arguing that the Supreme Court’s recent decision to take up Hemani warrants a stay in the lower court.
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Last year, a federal judge in Rhode Island ruled that the ban was unconstitutional as applied to two defendants, writing that the government failed to establish that the “sweeping” prohibition against gun ownership by marijuana users was grounded in historical precedent.
A federal judge in El Paso separately ruled in 2024 that the government’s ongoing ban on gun ownership by habitual marijuana users is unconstitutional in the case of a defendant who earlier pleaded guilty to the criminal charge. The court allowed the man to withdraw the plea and ordered that the indictment against him be dismissed.
DOJ 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.
In 2023, 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.
Read the latest DOJ filing defending the federal gun ban for marijuana users below:
The post DOJ Suggests ‘Frail And Elderly Grandmother’ Who Uses Medical Marijuana Could Own Gun—While Defending Overall Federal Ban appeared first on Marijuana Moment.
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