The Trump administration is asking a federal court to dismiss one of multiple pending cases concerning marijuana and gun rights, in large part because it expects the U.S. Supreme Court to make a precedent-setting ruling on the issue.

In a filing with the U.S. District Court for the Western District of Oklahoma on Tuesday, attorneys for the Justice Department urged a judge to dismiss a case “without prejudice” that involves a man charged in 2022 after police discovered cannabis and a handgun in his vehicle during a traffic stop.

Attorneys for the man, Jared Michael Harrison, also want the court to dismiss the case—but they take issue with DOJ’s specific request, as dismissing the case without prejudice would mean he could be prosecuted again. And they criticized the government’s arguments in support of its motion, noting that the department relied heavily on the length of the court battle that’s lasted three years. The lawyers also challenged the idea that outstanding Supreme Court cases that similarly deal with cannabis and federal firearms laws justify dismissal without prejudice.

But according to the federal government, the request would be “in the interest of justice,” while recognizing that the constitutionality of the statute in question–18 U.S.C. § 922(g)(3)—”remains open both in this case and in the country as a whole. ”

“There are currently seven petitions for certiorari pending before the Supreme Court challenging the constitutionality of § 922(g)(3) under the Second Amendment, six of which involve as-applied challenges, and are a mix of petitions filed by the United States and criminal defendants,” DOJ said, adding that they expect there’s a “reasonable likelihood that the Supreme Court will grant certiorari” in at least one of the pending cases.

“Continuing to pursue this case at this time would needlessly waste judicial and prosecutorial resources,” the government’s filing said.

“Second Amendment jurisprudence has developed significantly over the past three years. Nevertheless, based on the way the case was litigated three years ago, the Tenth Circuit held that certain arguments were waived and foreclosed the government from addressing them on remand. As a result, the United States believes that the interest of justice favors dismissal in this case to clear the way for a case that does not contain these impediments.”

Harrison’s lawyers said in their own filing on Tuesday that they have “no objection to dismissal in general.” However, they emphasized that such a dismissal should be ordered “with prejudice,” making it so he cannot be tried again for the same alleged crime.

“The government seeks to abandon this prosecution—for now—while keeping open the ability to prosecute Mr. Harrison again in the future,” his lawyers said. “Its request, if granted, would leave Mr. Harrison under the specter of reindictment at essentially any time, and for illegitimate reasons.”

The filing states that the government has acknowledged that part of its rational for making the request is because “it is unprepared for trial, the case is old, and it is constrained by appellate waiver rulings.”

“These are litigation choices and resource constraints attributable solely to the prosecution,” it says. “Allowing dismissal without prejudice under these circumstances would permit the government to evade the consequences of its own decisions while keeping Mr. Harrison under indefinite threat of renewed prosecution.”

“The possibility that the Supreme Court may take up § 922(g)(3) in another case is not a valid reason to keep Mr. Harrison under threat of reindictment. Rule 48(a) permits dismissal when consistent with the fair administration of justice, not to hold defendants in limbo while appellate strategy plays out elsewhere. If the government believes a forthcoming decision will alter the legal landscape, it remains free to test that decision in a future case—but not at Mr. Harrison’s expense.”

The filing says the government’s rationale underscores why the dismissal should be made with prejudice, noting that the prosecution “has already consumed years of litigation, appellate review, and judicial resources.”

“Allowing dismissal without prejudice would perpetuate uncertainty, leaving Mr. Harrison indefinitely under the shadow of indictment despite the government’s own admissions that it cannot presently try the case,” it says. “That outcome is contrary to the fairness and integrity Rule 48(a) is designed to protect.”

“Where, as here, the government’s justifications rest on the age of the case, questions of resource allocation, and the constraints of prior litigation, the public interest is not served by leaving the door open to renewed prosecution. Finality, fairness, and the protection against harassment all point in one direction: the indictment should be dismissed with prejudice. Mr. Harrison therefore respectfully requests that this Court grant the government’s motion only to the extent of dismissing the indictment with prejudice.”

Last month in the case, the Tenth Circuit ruled that the government must prove that people who use marijuana “pose a risk of future danger” if it wants to justify applying a law banning cannabis consumers from owning firearms, siding with a lower district court that dismissed an indictment against Harrison.

The Justice Department appealed that ruling in 2023, sending it to the Tenth Circuit. That three-judge panel said in a recent filing that they “agree with much of the district court’s analysis” of the legal considerations, including its challenge to the federal government’s claims that there is historically analogous precedent substantiating the firearm ban for cannabis consumers.

Part of DOJ’s argument was that the ban is historically consistent with prohibitions on gun ownership by people with mental illness. The appeals court said “the government cannot justify” the current policy based on that standard.

The lower court largely based his initial decision on an interpretation of a U.S. Supreme Court ruling in which the justices generally created a higher standard for policies that seek to impose restrictions on gun rights.

The ruling states that any such restrictions must be consistent with the historical context of the Second Amendment’s original 1791 ratification.

The historical analogues that the Justice Department relied on to make the case that the ban is consistent included references to antiquated case law preventing Catholics, loyalists, slaves and Indians from having guns.

The circuit court, for its part, said that “the government must show non-intoxicated marijuana users pose a risk of future danger” to support the current policy. “This inquiry, which may involve fact finding, is best suited for the district court.”

This opinion comes nearly a year after the Tenth Circuit heard oral arguments in the case, with judges questioning not only the firearms prohibition itself but also whether it was within the scope of the appeals panel’s power to review the underlying lower court’s decision. Ultimately, they determined that they did possess that authority.

Meanwhile, 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.

In the background of these developments, the U.S. Supreme Court is considering a series of cases challenging the gun ban for people who use marijuana.

The Trump administration has asked the high court to hear one of five relevant cases to resolve conflicting lower court decisions on gun rights for cannabis consumers and other illegal drugs from owning firearms and uphold the prohibition.

In the request, the solicitor general reiterated his position that, despite recent appeals court decisions calling into question the constitutionality of the firearms ban for people who use cannabis—even in compliance with state law—the restriction is nevertheless lawful.

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 a July ruling, for instance, 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.

By contrast, the Third Circuit earlier this month 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.

The appeals panel ruled that while a person “need not have harmed someone, threatened harm, or otherwise acted dangerously to justify his disarmament,” the history of gun laws in the country requires that “district courts must make individualized judgments and conclude that disarming a drug user is needed to address a risk that he would pose a physical danger to others.”

Judges in that case noted that historical restrictions on gun ownership under “drunkenness and lunacy laws” in the U.S. “were still always based on an ‘individualized assessment’ rather than a categorical judgment.”

Earlier this 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 late last year 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.

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Meanwhile, at an NRA conference in 2023, Trump suggested there might be a link between the use of “genetically engineered” marijuana and mass shootings. He listed a number of controversial and unproven factors that he said at the time he would direct the Food and Drug Administration (FDA) to investigate as possibly causing the ongoing scourge of mass shooting afflicting the country.

“We have to look at whether common psychiatric drugs, as well as genetically engineered cannabis and other narcotics, are causing psychotic breaks” that lead to gun violence, he said.

Last year, then-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.

The situation has caused confusion among medical marijuana patients, state lawmakers and advocacy groups, among others. The NRA’s lobbying arm said recently that the court rulings on the cannabis and guns issue have “led to a confusing regulatory landscape” that have impacted Americans’ 2nd Amendment rights.

Meanwhile, some states have passed their own laws either further restricting or attempting to preserve gun rights as they relate to marijuana. Recently 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.

As 2024 drew to a close, the ATF issued a warning to Kentucky residents that, if they choose to participate in the state’s medical marijuana program that’s set to launch imminently, they will be prohibited from buying or possessing firearms under federal law.

Since then, bipartisan state lawmakers have introduced legislation that would urge Kentucky’s representatives in Congress to amend federal law to clarify that users of medical marijuana may legally possess firearms, though no action has since been taken on that bill.

Kentucky Gov. Andy Beshear (D) said in January that he supported the legislature’s effort to urge the state’s congressional delegation to call for federal reforms to protect the 2nd Amendment rights of medical marijuana patients, but the governor added that he’d like to see even more sweeping change on the federal level.

Read the latest filings in the DOJ gun and cannabis case below: 

Photo elements courtesy of rawpixel and Philip Steffan.