Why the Cannabis-and-Guns Question Has Judges “All Over the Place”

February 7, 2023

On February 3, a federal court ruled that a federal statute preventing people who use cannabis from owning guns violates the Second Amendment. The ruling reflects legal upheaval following a deeply controversial Supreme Court decision last year. The full implications of the new decision remain to be seen, but may pertain more to gun rights generally than to the other forms of legal marijuana-use discrimination—like in employment, housing and education—that many cannabis activists would prefer to prioritize.

The case was brought to the US District Court for the Western District of Oklahoma by a medical marijuana patient named Jared M. Harrison. The plaintiff described being pulled over for a traffic violation in Lawton, Oklahoma, in May 2022. Police officers smelled cannabis in his car. Harrison said he told them he was heading to work at a local medical marijuana dispensary but didn’t have a medical license. Police ultimately searched him and his car. They did not conduct a sobriety test or blood draw, but found both cannabis and a loaded revolver. 

The relevant federal statute prohibits a person who is “an unlawful user of or addicted to any controlled substance” from buying or possessing firearms.

Harrison was initially arrested on drug possession and paraphernalia charges. But then in August, a federal grand jury indicted him for illegally possessing a firearm knowing he was an unlawful marijuana user. (Oklahoma does not require a license to buy guns or a permit for concealed carry, so state gun laws were not the issue—it was instead a question of federal law.)

The relevant federal statute prohibits a person who is “an unlawful user of or addicted to any controlled substance” from buying or possessing firearms (18 U.S. Code § 922). There is no exception for people in states that have legalized medical or adult use cannabis.

The District Court has now overturned that indictment, on the basis that the statute violates the Second-Amendment right to bear arms.

The court’s decision takes its cue from a hugely significant Supreme Court decision last year, in New York State Rifle & Pistol Association, Inc. v. Bruen. Bruen struck down a New York State law that restricted people’s right to carry a concealed firearm in public.

In that decision, the Supreme Court introduced a new two-step process for evaluating future gun rights cases.

First, does the Second Amendment apply at all to a legal challenge? And second—and very controversially—is this law “consistent with the Nation’s historical tradition of firearm regulation”? In other words, it’s the government’s burden to prove that a restriction on gun rights broadly aligns with laws that were in place when the Second Amendment was written.

The Oklahoma case “is part of a broader trend of judicial decisions we’ve seen over the past six-to-eight months since [Bruen] really upended the Second Amendment landscape,” Andrew Willinger, executive director of the Duke Center for Firearms Law, told Filter.

Other districts are currently looking at this question, and it’s unclear how those decisions will land.

Through the standard imposed by Bruen, the federal government had to demonstrate that the ban on drug users having guns—Section 922(g)(3), first enacted by the Gun Control Act of 1968—is in line with the “historical tradition” of gun regulation. In the Oklahoma case, Judge Patrick Wyrick found that the federal statute on unlawful drug users does not pass that test.

But other districts are currently looking at this question, and it’s unclear how those decisions will land. In the Eighth Circuit Court of Appeals, lawyers have asked the Supreme Court to review the conviction against a man under statute when he smoked marijuana the same day he was carrying a licensed handgun.

More recently in Florida, a federal court has been hearing a lawsuit that seeks to overturn the unlawful-drug-users ban on the basis that it discriminates against medical marijuana patients. Lawyers for the Biden-administration Department of Justice have demanded that the judge throw out the lawsuit, because marijuana remains illegal at the federal level. They argued that it’s “dangerous to trust regular marijuana users to exercise sound judgment while intoxicated” with guns.

The claim that people who use cannabis do not have “sound judgment” is one that advocates for harm reduction and drug policy reform will object to; and “while intoxicated” is a dubious standard, when cannabis remains detectable in a person’s body long after any impairment has worn off. But cannabis advocates who also favor tighter gun control may find themselves uncomfortable with both sides of the argument.

Zooming out from the marijuana- or drug-specific aspects of the Oklahoma case, the ruling is part of a broader trend of courts having to reexamine the question of who should be allowed to have firearms.

“Section 922 is frequently used by prosecutors and it lists various groups of people who are prohibited under federal law from possessing firearms—convicted felons, those who are under felony indictment, or subject to domestic violence restraining orders—including users of unlawful drugs,” Willinger said. “There have been other cases decided in recent months under the same precedent that have also invalidated other parts of 922(g).”

“The test is having a major impact and causing a lot of rulings coming out differently and judges to be all over the place.”

As to what happens next, Willinger said it’s likely that the federal government will appeal in the Oklahoma case, and an appellate court decision on that would then be likely to take several months. The Florida case, too, depending on its outcome, could potentially reach the appellate court. And if there’s conflict between how those two courts rule, that could set the stage for the specific cannabis-and-guns issue to reach the Supreme Court. But that’s a lot of “ifs.”

“I don’t think it’s worth speculating if this specific case will go up to the Supreme Court,” Willinger said, “but it’s very likely the Supreme Court will have to provide more guidance on the legal standard within the next couple years.” Such guidance might concern whether gun-ownership bans not only for drug users, but also for people with felony or domestic-violence misdemeanor convictions, are unconstitutional under Bruen.

“The test is having a major impact and causing a lot of rulings coming out differently and judges to be all over the place,” Willinger said. “There’s a lot of disagreement over various provisions, whether they are or are not consistent with the Second Amendment.”



Photograph via Rawpixel/Public Domain

Alexander Lekhtman

Alexander is Filter's staff writer. He writes about the movement to end the War on Drugs. He grew up in New Jersey and swears it's actually alright. He's also a musician hoping to change the world through the power of ledger lines and legislation. Alexander was previously Filter's editorial fellow.

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