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NORML’s Amicus Committee today filed an amicus (“friend of the court”) brief with the U.S. Supreme Court in United States v. Hemani, arguing that the federal government’s categorical ban on firearm ownership for individuals with a history of marijuana use violates the Second Amendment.
“For centuries, Americans cultivated, consumed, and prescribed cannabis without any suggestion that doing so warranted loss of firearms rights. And state-legal medical cannabis users readily continue to do so today with the protection of Congress,” the brief explains. “The historical analogs the government identifies concern temporary restrictions on carrying or firing weapons while intoxicated or on persons adjudged dangerous — not blanket bans on all users of a disfavored substance.”
The amicus brief in Hemani was filed by attorneys Joseph A. Bondy, Chair of NORML’s Board of Directors, and David C. Holland, Co-Chair of NORML’s Amicus Committee, together with NORML Board Members Dan Viets and Nicole H. Fried, and Amicus Committee Members Leland R. Berger and Gregory J. Morse. NORML Deputy Director Paul Armentano also participated extensively in assisting these efforts.
The case arises from a Fifth Circuit decision holding that cannabis consumers remain among “the people” protected by the Second Amendment and that the federal government may not impose categorical disarmament absent evidence of intoxication, misuse of a firearm, or individualized dangerousness. The Justice Department is seeking Supreme Court review.
NORML’s Amicus Committee has played a sustained role in this emerging body of law. It previously filed amicus briefs in United States v. Daniels, where the Fifth Circuit concluded that neither “history [nor] tradition … justify disarming a sober citizen based exclusively on his past drug usage,” and in Cooper v. Attorney General of the United States, where the Eleventh Circuit held that the federal firearms ban does not apply to individuals who possess medical cannabis in compliance with state law.
For decades, the federal government has asserted that the 1968 prohibition on firearm possession by an “unlawful user” of a federally controlled substance should be applied broadly, effectively criminalizing gun ownership based solely on past marijuana use — even absent intoxication or dangerous conduct. Recent appellate decisions, however, reflect growing judicial skepticism of that position.
Earlier this month, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) published a proposed rule in the Federal Register revising its interpretation of “unlawful user.” Under the proposed rule, federal prosecutors would be required to show evidence of “regular” or “compulsive” drug use over an extended period of time before restricting an individual’s Second Amendment rights.
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