Federal Appeals Court Rules That Gun Ban For Marijuana Consumers Is Unconstitutional

August 11, 2023 · marijuanamoment.net

A federal appeals court has ruled that the ban preventing people who use marijuana from possessing firearms is unconstitutional—the latest and highest-level blow to the long-standing federal prohibition that’s actively being challenged in a number of cases across the country.

A three-judge panel agreed on Wednesday to reverse the conviction of a man who was sentenced to nearly four years in prison after being pulled over with firearms and admitting to occasionally using cannabis.

The U.S. Court of Appeals for the Fifth Circuit cited a 2022 Supreme Court ruling that says any firearm restrictions must be consistent with the historical context of the Second Amendment’s original 1791 ratification. Judges said that the federal government’s attempts to establish a historical analogue to the marijuana gun ban fell short.

“Throughout American history, laws have regulated the combination of guns and intoxicating substances. But at no point in the 18th or 19th century did the government disarm individuals who used drugs or alcohol at one time from possessing guns at another,” the appeals court said.

“In short, our history and tradition may support some limits on an intoxicated person’s right to carry a weapon, but it does not justify disarming a sober citizen based exclusively on his past drug usage,” the opinion written by Reagan-appointed U.S. Circuit Judge Jerry Smith says. “Nor do more generalized traditions of disarming dangerous persons support this restriction on nonviolent drug users.”

Kimberly Golden Gore, an attorney for Daniels, similarly said during an oral argument in June that her client was “serving 46 months in a federal facility for having less than half a gram of marijuana, and two firearms that otherwise would have been legal,” arguing that “historical tradition simply doesn’t support that kind of permanent and total restriction on his Second Amendment rights.”

The court’s opinion says that while the founders behind the ratification of the Second Amendment were “familiar” with cannabis plants—as they “grew hemp to make rope”—they “were not familiar with widespread use of marihuana as a narcotic, nor the modern drug trade.”

“Thus, though intoxication generally was a persistent social problem, the Founding generation had no occasion to consider the relationship between firearms and intoxication via cannabis,” the court, the jurisdiction of which covers Louisiana, Mississippi and Texas, said.

The court further disputed the Justice Department’s attempt to link regular cannabis use to firearm bans for mentally ill people. The judges said that, at most, the analogue is only relevant to possession of a gun while actively impaired—and at no point did the Drug Enforcement Administration (DEA), which investigated the case, claim that the defendant Patrick Darnell Daniels Jr. was intoxicated when he was pulled over in Mississippi in April 2022.

The judges also said that the government’s argument about the ability of Congress to disarm “dangerous” people also misses the mark when applied to the marijuana ban.

“The government identifies no class of persons at the Founding (or even at Reconstruction) who were ‘dangerous’ for reasons comparable to marihuana users. Marihuana users are not a class of political traitors, as British Loyalists were perceived to be. Nor are they like Catholics and other religious dissenters who were seen as potential insurrectionists. And even if we consider the racially discriminatory laws at the Founding, Daniels is not like the minorities who the Founders thought threatened violent revolt.”

“Furthermore, even as the Founders were disarming Catholics and politically disaffected citizens, they left ordinary drunkards unregulated. The government has no meaningful response to the fact that neither Congress nor the states disarmed alcoholics, the group most closely analogous to marihuana users in the 18th and 19th centuries,” the ruling continues. “As with the government’s analogy to mental illness, we must ask: Which are marihuana users more like: British Loyalists during the Revolution? Or repeat alcohol users? The answer is surely the latter.”

“We conclude only by emphasizing the narrowness of that holding. We do not invalidate the statute in all its applications, but, importantly, only as applied to Daniels. Nor do we suggest that a robust Second Amendment is incompatible with other reasonable gun regulations,” the majority opinion concludes. “Such statutes just need to be consonant with the limits the Founding generation understood to be permissible when they ratified the Second Amendment. The government has failed to demonstrate that here.”

A concurring opinion from the Obama-appointed U.S. Circuit Judge Stephen Higginson says that he “fully” agrees with the court’s interpretation of the unconstitutionality of the federal statute applied in Daniels’s case, though he argued that the Supreme Court ruling on which it is largely based has become problematic in courts across the U.S. that have since struck down various gun restrictions amid an “ongoing crisis of gun violence.”

“Bound by this interpretative sequence, we hold today that 18 U.S.C. § 922(g)(3), a decades-old felony provision of our federal firearms law, is unconstitutional as applied to Mr. Daniels,” the judge wrote. “Although our decision is limited in scope, it is hard for me to avoid the conclusion that most, if not all, applications of § 922(g)(3) will likewise be deficient.”

In that sense, it’s possible that the court’s decision could mean that the statute could be invalid when it comes to any person who is an “unlawful user” of any illicit drug, not just marijuana. That reasoning could also assist with President Joe Biden’s son’s own federal criminal case, where the government charged Hunter Biden under the gun statute after he disclosed that he was a regular user of crack cocaine when he purchased a handgun in 2018.

Attorneys for Hunter Biden have previously cited another ruling from the U.S. District Court for the Western District of Oklahoma that similarly deemed the firearms ban for marijuana consumers unconstitutional, arguing that it applies to their client’s case as well. The Justice Department is appealing the district court’s decision to the U.S. Court of Appeals for the Tenth Circuit.

The Fifth Circuit Court in the latest case did say at one point, however, that the government could theoretically argue “that the drugs Daniels used were so powerful that anyone who uses them is permanently impaired in a way that is comparable to ongoing mental illness,” or it could “demonstrate that Daniels’s drug use was so regular and so heavy that he was continually impaired.” That seems to open the door to qualitative questions about the effects of substances beside cannabis.

In any case, the appeals court made clear that the federal prohibition on firearms for cannabis consumers fails under recent precedent.

This represents the latest of several successful challenges to the statute in federal court.

In the Oklahoma-based federal case that the government is appealing, Judge Patrick Wyrick dismissed an indictment against a man who was charged under the statute in 2022 after police discovered cannabis and a handgun in his vehicle during a traffic stop. The court had similarly determined that the law banning “unlawful” users of marijuana from possessing firearms violates the Second Amendment of the Constitution.

Also, in the U.S. District Court for the Western District of Texas, a judge ruled in April that banning people who use marijuana from possessing firearms is unconstitutional—and it said that the same legal principle also applies to the sale and transfer of guns, too.

Another federal lawsuit challenging the constitutionality of the firearm ban as applied to medical cannabis patients is ongoing in Florida, with oral arguments before the U.S. Court of Appeals for the Eleventh Circuit scheduled for next month. A district court judge ruled against the plaintiffs in that case, but they are appealing. The lawsuit was originally filed by former Florida Agriculture Commissioner Nikki Fried (D), but her predecessor has declined to join the challenge since assuming that office.

Despite the newest and other recent rulings on the unconstitutionality of the statute, the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has maintained that the marijuana firearms ban is unambiguous and enforceable, including in states where marijuana has been legalized.

Shortly after Minnesota’s governor signed a legalization bill into law in May, the agency 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.

Meanwhile, even as ATF maintains that it must enforce the ban, the agency recently updated its own cannabis employment policy.

The update make it so applicants who’ve grown, manufactured or sold marijuana in compliance with state laws while serving in a “position of public responsibility” will no longer be automatically disqualified—whereas those who did so in violation of state cannabis policies won’t be considered.

Republican congressional lawmakers have filed two bills so far this session that focus on gun and marijuana policy.

Rep. Brian Mast (R-FL), co-chair of the Congressional Cannabis Caucus, filed legislation in May to protect the Second Amendment rights of people who use marijuana in legal states, allowing them to purchase and possess firearms that they’re currently prohibited from having under federal law.

Mast is also cosponsoring a separate bill from Rep. Alex Mooney (R-WV) this session that would more narrowly allow medical cannabis patients to purchase and possess firearms.

Meanwhile, a law that went into effect in Arkansas this month now clarifies that medical marijuana patients can obtain concealed carry licenses for firearms. (Full Story)

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