New gun rules may be needed in IL after SCOTUS marijuana gun rights ruling

By Jonathan Bilyk | Legal Newsline
The Center Square

The U.S. Supreme Court has ruled occasional and “habitual” marijuana use alone cannot be used by governments as a reason to deny people the right to own guns.

And that ruling, which came over the objections of Democratic state attorneys general, including Illinois Attorney General Kwame Raoul, could mean legislative or regulatory changes may be needed in Illinois to bring the state’s controversial firearms ownership regulations into line with the high court’s interpretation.

On June 18, the U.S. Supreme Court unanimously struck down as unconstitutional the federal government’s prosecution of a Pakistani American for alleged illegal possession of a firearm.

In the court’s lead majority opinion, Justice Neil Gorsuch said the court rejected the attempt by the federal government, and their supporters among the state governments and others, to allow government agencies to categorically strip Second Amendment rights from anyone who consumes any amount of marijuana, whether or not they were violent or presented a threat to anyone.

“… We do not question that sometimes an individual’s unlawful use of marijuana (or any other controlled substance) may render him a danger to others,” Gorsuch wrote.

But, Gorsuch wrote, “affording the government that kind of ‘broad power to designate any group as dangerous and thereby disqualify its members from having a gun’ would risk allowing it to ‘quickly swallow’ the Second Amendment.”

The ruling landed as a strong rebuke to not only the federal government, which sought to defend its decades-old powers to strip gun rights from all drug users, but also to state attorneys general, who had defended those powers, despite also simultaneously asserting that marijuana is not dangerous and should be widely legalized.

Among those were Illinois Attorney General Kwame Raoul, who helped author and signed onto a brief filed with the Supreme Court in December in support of denying marijuana users the right to own guns.

Raoul was joined in the filing by attorneys general from 18 other states, including Raoul’s fellow Democrats from such states as California, New York, New Jersey, Michigan, Minnesota, Maryland and Massachusetts, and one Republican, Ohio Attorney General Dave Yost.

The case had landed at the Supreme Court out of the federal prosecution of Ali Danial Hemani. According to court documents, Hemani is a dual citizen of both the U.S. and Pakistan. According to court documents, Hemani and his family are noted sympathizers and supporters of the ruling Islamic regime of Iran, which is considered a leading supporter of international Islamic terrorism and other violence against the interests of the U.S. and its allies.

According to court documents, Hemani’s brother is in Iran, attending a school considered to be tied to Islamic terrorism, and U.S. authorities say Hemani was found in possession of “communications suggesting that he was posed to commit fraud at the direction of suspected affiliates of the Iranian Revolutionary Guard Corps, a designated foreign terrorist organization.”

He further traveled in 2020 to Iran “to participate in a celebration of the life of Qasem Soleimani, an Iranian general and terrorist who had been killed by an American drone strike the month before” and has told American law enforcement that he would not report terrorist strikes, if he knew of them.

At the same time, the U.S. government has asserted Hemani is a drug dealer who was found by federal agents to be in possession of cocaine and marijuana during a warrant search of his family home.

He was also found in possession of a Glock 9mm pistol.

After admitting he smoked marijuana at least every other day, he was charged by federal authorities with violating a federal law that prohibits “habitual” users of marijuana and other drugs from possessing guns.

In court, Hemani challenged that criminal charge, arguing the federal law violated his Second Amendment rights.

A federal judge in the Eastern District of Texas agreed, declaring the law unconstitutional. And the U.S. Fifth Circuit Court of Appeals upheld the ruling, also finding the federal law unconstitutional.

In the Fifth Circuit ruling, the judges said such bans can only be enforced against people who are found to be carrying firearms while intoxicated or under the influence of such drugs.

The Justice Department under President Donald Trump appealed the ruling to the U.S. Supreme Court in July, asserting the lower courts were wrong and warning the decisions, if upheld, could be used to also invalidate similar laws in Illinois, as well as 31 states and D.C. also prohibiting “habitual” marijuana users from owning and carrying firearms.

At the Supreme Court, the case generated unusual alliances arguing over the rights at issue in the case.

While the normally left-wing American Civil Liberties Union sided loosely with Second Amendment rights advocates against the ban, the Democratic attorneys general sided with the Trump White House, in seeking to preserve their authority to strip away gun rights from marijuana users.

The positions of Raoul and his fellow Democratic state attorneys general in the case also drew attention for the seeming conflict between their support for marijuana legalization, on one hand, and their commitment to defending a position that would allow them to remove Second Amendment rights from people who may use a substance they assert should be widely legal.

In Illinois, for instance, Raoul and Illinois Gov. JB Pritzker were among those who supported decriminalization of marijuana possession and its recreational use when Illinois in 2019 became the 11th state to do so.

The Illinois measure further cleared the criminal record of 800,000 people who had been criminally charged after purchasing or possessing 30 grams or less of marijuana.

At the time he signed the measure into law, Pritzker said the measure demonstrated Illinois Democrats’ continuing commitment to social justice and racial equity.

“Legalizing adult-use cannabis brings an important and overdue change to our state, and it’s the right thing to do,” Pritzker said in 2019 when he signed the law. “This legislation will clear the cannabis-related records of nonviolent offenders through an efficient combination of automatic expungement, gubernatorial pardon and individual court action.”

However, Raoul still argued in favor of the gun ban, asserting he was drawing a distinction between “casual use” of marijuana, versus “habitual use.”

Each state defines “habitual” marijuana use differently.

Federal law prohibits anyone who uses marijuana from owning guns.

In Illinois, the state police have drafted guidelines that prohibit the state from citing legal marijuana use alone to deny applications for a state Firearms Owner Identification Card (FOID.)

However, the state can still deny FOID cards, which are needed to legally own guns in the state, to anyone the state determines to be “addicted to or a habitual user” of marijuana. The definition of such terms is also nebulous and subject to interpretation.

Some drug treatment organizations have defined “habitual” or “chronic” use of marijuana as “daily or near daily” use of the substance.

In his filing to the Supreme Court, Raoul said: “Allowing habitual drug users to carry or use firearms significantly increases danger to our communities.”

However, at the Supreme Court, Gorsuch and his colleagues rejected the attempt by the government to use laws from America’s founding era forbidding “drunkards” from owning guns to also argue marijuana use could be cited to deny Second Amendment rights today.

Gorsuch and the majority, however, said those laws were more akin to modern laws dealing with intoxication and addiction.

Gorsuch said the ruling in the Hemani case does not assail those laws. But he said the Supreme Court agreed that governments cannot use marijuana use alone to deny Americans their Second Amendment rights.

Raoul has not publicly commented on the Hemani decision.