A federal judge in Texas recently agreed with a federal judge in Oklahoma that the national ban on gun possession by cannabis consumers violates the Second Amendment. Kathleen Cardone, a judge on the U.S. District Court for the Western District of Texas, also concluded that the federal ban on transferring firearms to an "unlawful user" of a "controlled substance," first imposed by the Gun Control Act of 1968, is unconstitutional.
The case involves Paola Connelly, who was charged with illegal possession of firearms under 18 USC 922(g)(3) after El Paso police found marijuana and guns in her home while responding to a domestic disturbance in December 2021. Connelly, who said she used marijuana "to sleep at night and to help her with anxiety," also was charged with violating 18 USC 922(d)(3) by transferring guns to her husband, a cocaine and psilocybin user. Both gun offenses are punishable by up to 15 years in prison.
As a preliminary matter, Cardone held that Connelly's Second Amendment claims were not precluded by prior decisions in which the U.S. Court of Appeals for the 5th Circuit, which includes Texas, upheld Section 922(g)(3). Those decisions, she noted, preceded the Supreme Court's June 2022 ruling in New York State Rifle & Pistol Association v. Bruen, which said gun control laws must be "consistent with the Nation's historical tradition of firearm regulation."
Last February in United States v. Rahimi, the 5th Circuit concluded that Bruen required it to reconsider decisions upholding the federal ban on gun possession by people subject to domestic violence restraining orders. By the same logic, Cardone says in an order published last week, the 5th Circuit's precedents regarding Section 922(g)(3) are no longer binding.
As it has in previous cases involving the same law, the Biden administration argued that the gun ban for marijuana users meets the Bruen test because it is "relevantly similar" to colonial and state laws forbidding people to publicly use or carry guns while intoxicated. Like U.S. District Judge Patrick Wyrick, who deemed that ban unconstitutional in an Oklahoma case last February, Cardone was unpersuaded by that analogy.
"The historical intoxication laws cited by the Government generally addressed specific societal problems with narrow restrictions on gun use, while § 922(g)(3) addresses widespread criminal issues with a broad restriction on gun possession," Cardone notes. "The laws, therefore, are not relevantly similar in how and why they regulate firearms, and do not suffice to establish the constitutionality of § 922(g)(3)."
A 1655 Virginia law, for example, prohibited "shoot[ing] any gunns at drinkeing (marriages and ffuneralls onely excepted)." To show why that law is not "relevantly similar" to the ban that Connelly challenged, Cardone draws an analogy with contemporary laws that prohibit driving under the influence (DUI).
"The Virginia law regulated guns in much the same way," Cardone writes. "It prevented individuals from using dangerous equipment while intoxication might impair their abilities and judgment. Consider instead a law that would prevent individuals from possessing cars at all if they regularly drink alcohol on weekends. Nobody would say that this hypothetical law is similar to DUI laws in how it regulates cars. The hypothetical law's focus on possession, rather than use, of the vehicle imposes a much greater burden on drivers. A similar distinction exists between § 922(g)(3) and the Virginia law."
State laws enacted in the 19th century likewise were aimed at people who publicly carried or fired guns when they were drunk. By contrast, Section 922(g)(3) covers all cannabis consumers, including those who live in states that have legalized marijuana, even when they are not intoxicated, and it applies to private as well as public possession. A truly analogous rule regarding alcohol would categorically ban gun ownership by drinkers.
The government also argued that Section 922(g)(3) is consistent with a purported tradition of disarming "unvirtuous" people. "It is unclear whether legal authorities at the founding era would consider Connelly's homebound drug use 'unvirtuous,'" Cardone says. She notes colonial-era jurist William Blackstone's distinction between "public and private vices": While the former are subject to the "punishments of human tribunals," he said, the latter are subject only to "eternal justice." Blackstone explicitly applied that distinction to drunkenness.
"Connelly's alleged drug use more resembles private drinking than public drunkenness, casting doubt on the idea that history supports criminalizing or disarming her for this behavior," Cardone writes. "And more generally, nothing in § 922(g)(3) limits its applicability to public dangers or active intoxication, putting it out of step with colonial-era attitudes."
Cardone was equally unimpressed by the government's argument that Connelly was disqualified from owning guns because she was not "law-abiding." While her marijuana use, if proven, "would violate federal law," Cardone says, that offense is a nonviolent misdemeanor, and "no one even today reads [Second Amendment history] to support the disarmament of literally all criminals, even nonviolent misdemeanants."
Notably, Cardone is quoting a 2019 dissent that Supreme Court Justice Amy Coney Barrett wrote as a judge on the U.S. Court of Appeals for the 7th Circuit. Barrett argued that the federal ban on gun possession by people with nonviolent felony records sweeps too broadly. In making that case, she took it for granted that a nonviolent misdemeanor is not enough to justify depriving someone of his Second Amendment rights.
As applied to Connelly, such a rule seems especially perverse given President Joe Biden's position that marijuana use should not be treated as a crime at all. Cardone notes Biden's "blanket presidential pardon" for people convicted of simple marijuana possession under federal law. Because that pardon applies to conduct that occurred before October 6, 2022, it would cover the marijuana that police found in Connelly's home.
What about the government's claim that marijuana users like Connelly are too "dangerous" to be trusted with guns? "Even if history broadly supports disarming dangerous individuals, there is little evidence that Connelly herself is dangerous," Cardone says. "The Government has not alleged that she committed any violent or threatening acts. Instead, its core allegation is that she possessed and used marijuana."
Cardone notes that more than 20 states "have legalized the recreational use of marijuana, and millions of U.S. citizens regularly use the substance." She thinks "it strains credulity to believe that taking part in such a widespread practice can render an individual so dangerous or untrustworthy that they must be stripped of their Second Amendment rights."
Cardone also notes that Section 922(g)(3), unlike restrictions that hinge on a conviction or a judicial order, deprives people of their Second Amendment rights "without a hearing or any preliminary showing from the Government." They "must choose to either stop their marijuana use, forgo possession of a firearm, or continue both practices and face up to fifteen years in federal prison."
Cardone extended her analysis to the charge that Connelly illegally transferred guns to her husband. His behavior, unlike Connelly's, did indicate that he posed a danger to others: Police arrested him after "they heard several shots and observed [him] standing at his neighbor's door with a shotgun." But that fact, Cardone says, does not preclude Connelly's facial challenge to Section 922(d)(3), which applies even to nonviolent drug users.
Because banning gun transfers to drug users is tantamount to banning possession, Cardone concluded, that provision raises the same concerns as Section 922(g)(3). She therefore dismissed both charges against Connelly.
Unlike Cardone and Wyrick, Allen Winsor, a judge on the U.S. District Court for the Northern District of Florida, thought the government's "historical analogues" were close enough. Last November, Winsor dismissed a lawsuit in which Florida medical marijuana patients sought to recover their Second Amendment rights. The plaintiffs are asking the U.S. Court of Appeals for the 11th Circuit to overrule Winsor.
In response, the Biden administration continues to argue that forbidding cannabis consumers to own guns is like telling people not to carry guns when they're drunk. The Justice Department, meanwhile, is appealing Wyrick's decision, and it can be expected to appeal Cardone's as well.
For those keeping partisan score, it is notable that all three of these judges were appointed by Republican presidents: Cardone by George W. Bush, Wyrick and Winsor by Donald Trump. Their disagreement seems to reflect evolving conservative views of marijuana as well as the impact of Bruen.
Whatever you make of that, cases challenging the constitutionality of Section 922(g)(3) will soon be considered by three federal appeals courts: the 5th Circuit, the 10th Circuit, and the 11th Circuit. Assuming they reach different conclusions, the Supreme Court is apt to intervene, decisively settling the question of whether the right to keep and bear arms includes an exception for people who dare to consume a psychoactive substance that legislators deemed intolerable more than two centuries after the Second Amendment was ratified.
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