Pennsylvania Prosecutor Who Uses Medical Marijuana Asks Federal Court To Hear His Case On Gun Rights

Lawyers for a Pennsylvania district attorney who’s suing the federal government over its ban on gun ownership by cannabis users filed a new brief in the case this week, arguing that the court should allow the matter to proceed to trial despite the Department of Justice’s (DOJ) move to dismiss it.

Plaintiffs in the dispute, led by Warren County District Attorney Robert Greene, argue that despite recent court precedent acknowledging limits to the Second Amendment, the federal government cannot sweepingly ban all marijuana consumers from owning guns.

The new 41-page brief from plaintiffs pushes back against arguments made earlier this month by DOJ lawyers, who asserted that the current ban on gun ownership by cannabis users is constitutional and aligns with other firearms restrictions for dangerous, mentally ill or intoxicated people.

Historically, the new brief argues, other laws prohibiting gun ownership by potentially dangerous individuals “only permitted the deprivation of one’s Second Amendment rights after a hearing, providing for due process, and then, only temporarily.”

It asserts that while the government frames its marijuana gun ban as similarly temporary, 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 filing says, “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.’”

In fact, it continues, any cannabis use whatsoever within the year before—including merely registering for a state medical marijuana program—”results in an individual constituting an unlawful user,” thus disqualifying them from possessing a gun.

“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,” the brief says. “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.”

The plaintiffs’ new brief also questions the government’s classification of cannabis as dangerous when officials allow gun ownerships by individuals with prescriptions for a variety of other impairing drugs.

“It is also very interesting the Government elects not to inform this Court that…if an individual has a prescription for a controlled substance, that individual may purchase, possess, and utilize firearms and ammunition, even while under the influence of that drug,” the filing says.

It continues: “Thus, the government can hardly espouse the ‘danger to the public’ that it contends exists, when it allows individuals, pursuant to a prescription, not just to purchase, possess, and utilize firearms and ammunition while in the possession of one of these drugs, but to be actively intoxicated by these medications at the time the person is purchasing, possessing, or utilizing firearms and ammunition.”

More broadly, plaintiffs in the brief also assert that “there is no evidence of record to substantiate the Government’s contention that ‘[m]arijuana’s physical and mental effects make it dangerous for a person to handle firearms and impair a person’s judgment, including judgment about whether to use firearms.’”

The Department of Justice earlier this month asked the judge in the case to throw out the suit, arguing that the ban on marijuana consumers owning firearms is constitutional and aligns with other restrictions on gun ownership by dangerous, mentally ill or intoxicated people.

“Marijuana’s physical and mental effects make it dangerous for a person to handle firearms,” it says, “and also impair a person’s judgment, including judgement about whether to use firearms.”

The plaintiffs’ new brief points to an academic review of data from 2010 to 2020 that concluded that “there is no evidence of an increased danger posed by medical legalization, nor that medical marijuana users are dangerous persons.”

Plaintiffs also noted in the filing that DOJ failed to acknowledge in its latest brief that Congress since 2015 has barred the department from using federal funds to interfere with state medical marijuana programs.

The brief, filed Wednesday in U.S. District Court for the Western District of Pennsylvania, is the latest in a case filed earlier this year by Greene, who is a registered medical marijuana patient in the state. He teamed up in January with the Second Amendment Foundation (SAF) to sue the government, including U.S. Attorney General Merrick Garland and the heads of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) and the FBI.

The original suit says that while Greene “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.

DOJ has previously argued the plaintiff Second Amendment Foundation lacks standing because it’s not directly harmed by the policy. Plaintiffs counter in the new filing, however, that the group, whose members it says are similarly situated to Greene, has associational standing.

“An organization only needs one injured member to have standing,” the new brief says.

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.

The new plaintiffs’ brief, however, points out that even Rahimi says that 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 faced off earlier this 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 presentlyintoxicated 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, meanwhile, 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 latest brief in Greene v. Garland below:

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