On Wednesday, the United States Department of Justice (DOJ) filed a briefing in a case challenging the prohibition of marijuana users owning firearms out of the Third Circuit Court of Appeals.
The case, United States v. Erik Matthew Harris, is one of many court cases challenging the federal prohibition on marijuana users possessing guns. Erik Harris was charged and convicted of being a person “who is an unlawful user of or addicted to any controlled substance” and having a firearm. After the conviction, Harris’s legal team filed an appeal claiming the law was unconstitutional.
The DOJ Criminal Division has now filed its brief to the Circuit Court, and to many, it reads like the 1936 movie, “Reefer Madness.” It is hard to distinguish between propaganda and fact in the government’s briefing. The DOJ seems to conflate hard drugs with a drug that is legal in many states and is used by many medical patients, although it is still federally banned.
One claim that the federal government makes in the brief is that people who use marijuana are likely not to store their firearms safely. The government also claims that marijuana users are “apt to retain possession while under the influence.” The DOJ doesn’t cite any sources for this bold claim, and lawyers state that this alleged fact means the federal prohibition is constitutional.
“Indeed, even if a court were to consider only the risk that a person will misuse firearms while under the influence of drugs, Section 922(g)(3) complies with the Second Amendment because drug users who possess firearms are apt to retain possession while under the influence,” the DOJ said. “This case is an example: Harris claimed to lose one of his firearms (potentially at a bar) on the same evening that he smoked marijuana and was drunk.”
The DOJ also claims that those who use marijuana are likely to use guns to commit crimes to fund their drug habit. The government also claims that marijuana users are likely to use their guns to protect their drugs. The brief also argues that users are at a higher risk of committing suicide. The government doesn’t cite a source.
“Drug users also frequently use firearms to commit other crimes—including to fund their drug habit, protect their stash, or prevent apprehension—and may use firearms to commit acts of self-harm,” the brief reads. “In Section 922(g)(3), Congress sought to address these problems by temporarily disarming regular drug users and drug addicts. An individual can regain his ability to possess firearms by stopping his illegal drug abuse.”
“As explained, drug users are also more likely to use firearms to commit crimes to fund their drug habit, engage in violence as part of the drug business or culture, attack police officers who are investigating their drug crimes, and commit suicide,” it continues. “Those risks justify disarming habitual drug users even ‘between periods’ of drug intoxication.”
The DOJ also claims that the Second Amendment only applies to law-abiding citizens. Since a marijuana user is breaking the law, they are not law-abiding in the eyes of the DOJ, but the courts have ruled that if a law is unconstitutional, then it is invalid. The case isn’t challenging the constitutionality of the prohibition of marijuana. It is only challenging the banning of firearms for users of the drug.
The DOJ said there’s a “demonstrated correlation between marijuana use and certain mental illnesses” but did admit those claims are contested in the scientific community. The DOJ legal team stated that there are historical analogs from the founding era that showed the mentally ill being disarmed. The government is leaning heavily on these laws to prove its case and that the law is “comfortably” constitutional.
The government also cited safety for police in its brief. The DOJ claims that people under the influence are likely to assault cops. The DOJ seems to be trying to use “interest balancing” even though the Bruen decision explicitly forbade the courts from using the “two-step legal test.”
There are two other circuit court cases challenging the prohibition of guns for those who use marijuana. One case is in the Fifth Circuit Court of Appeals, and the second is in the Eleventh Court of Appeals.