One Toke Closer to the Line: Guns & Cannabis Ruling You Missed

Elon Musk, pictured here slonking fat doinks with Joe Rogan, now has Donald Trump’s ear …

Dear Trump Administration Justice Department: Weed like a word with you.

We’ve said it before and we’ll say it again: How does it make any sense that the federal government still prohibits a substance that is legal in 47 states? How does it make any sense that the same prohibition means that citizens who do use cannabis are then disallowed gun ownership? And finally, how does any of the above make sense when the President’s right-hand man definitely knows how to hold de smoke, and did so on camera?

Without trying to make a case for the federal legalization of Lucifer’s Lettuce (or Beelzebub’s Bibb, Satan’s Salad or whatever other term you like), it does seem like prohibiting marijuana users from firearms ownership is a bit of an overreach. A DUI conviction isn’t enough to negate Second Amendment rights, and a person with a DUI has at minimum displayed a lack of responsibility around substance use. So why do Gram-Gram’s cannabis cookies, consumed safely in her home, mean she can’t own a firearm?

The National Rifle Association has been following a case that’s going through the courts that may help right some of those wrongs. Of course, the NRA doesn’t advocate for or against the use of giggleweed, because that’s outside their lane, but they DO care about people’s Second Amendment rights being infringed for things that aren’t … exactly … crimes anymore. Today, we have an excellent breakdown from NRA-ILA about how this works, and what we might expect moving forward. Pass it on the left-hand side!

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The U.S. Supreme Court’s landmark ruling in the NRA-supported case New York State Rifle & Pistol Association v. Bruen (2022) continues to play a critical role in cases related to Second Amendment rights. On February 5, the U.S. Court of Appeals for the Eighth Circuit pared back the federal government’s blanket ban on all illegal drug users (even those who use marijuana in accordance with state law) possessing firearms.

Justice Clarence Thomas’s opinion in Bruen made clear that for a firearm regulation to pass constitutional muster it must fit within the text, history, and tradition of the Second Amendment right. The opinion stated,

[w]hen the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.”

This has correctly prompted a reappraisal of the categories of people prohibited from possessing firearms enumerated in federal law at 18 U.S.C. 922(g). In the historical tradition, the government could bar individuals who have been found to be dangerous from possessing firearms. However, the federal prohibited persons categories go well beyond this understanding.

The Eighth Circuit case of U.S. v. Cooper concerned a gentleman who fell under the 18 U.S.C. 922(g)(3) prohibition on anyone “who is an unlawful user of or addicted to any controlled substance” for regularly smoking marijuana.

This prohibition has come under increasing scrutiny in recent years, as states have sought to liberalize their laws concerning marijuana. The Centers for Disease Control and Prevention notes that “47 states… allow for the use of cannabis for medical purposes.” However, federal law still prohibits marijuana possession, making those who use it, even in accordance with state law, subject to the sweeping 922(g)(3) prohibition. The Eighth Circuit panel concluded that the 18 U.S.C. 922(g)(3) prohibition at least sometimes violates the Second Amendment as applied to some drug users.

The Eighth Circuit panel acknowledged that some drug users can be barred from possessing firearms consistent with the Second Amendment when their conduct is akin to that of the severely mentally ill who could be committed or those “taking up arms to terrify the people,” which were historic causes for disarmament.

Explaining the mental illness analogy, the court stated,

The “behavioral effects” of mental illness and drug use can “overlap”… but only the subset of the mentally ill who were dangerous faced confinement and the loss of arms… It follows that, for disarmament of drug users and addicts to be comparably “justifi[ed],” it must be limited to those “who pose a danger to others.”… The analogy is complete, in other words, for someone whose “regular use[] of… PCP… induce[s] violence,” but not for a “frail and elderly grandmother” who “uses  marijuana for a chronic medical condition.”

Further explaining the “taking up arms to terrify the people” analogy, the court stated that the historic restriction was “a mechanism for punishing those who had menaced others with firearms.”

The court went on to explain,

Sometimes disarming drug users and addicts will line up with the case-by-case historical tradition, but other times it will not … The district court’s task on remand is to figure out which side of the Second Amendment line Cooper’s case falls on.

It is important to note, as the preceding passage suggests, the Eighth Circuit’s ruling was on an as-applied basis, meaning that the individual facts of a case will matter in determining whether the blanket unlawful user firearm prohibition applies to an individual. However, the Eighth Circuit’s more nuanced approach to 18 U.S.C. 922(g)(3) prohibition, meaningfully taking into account the historic tradition of firearm restrictions, is welcome evidence that following Bruen the lower federal courts are starting to treat the Second Amendment right with the respect it deserves.