Ban on gun possession by marijuana users unconstitutional, federal judge says

In a ruling issued Friday, a federal judge in Oklahoma said banning marijuana users from owning guns violates the Second Amendment. This ban, US District Judge Patrick Wyrick concluded United States v. Harrison“Inconsistent with this nation’s historic tradition of gun control” – constitutional test established by Supreme Court’s 2022 decision New York State Rifle and Pistol Association v. Bruen.

The Oklahoma case involves Jared Michael Harrison, a marijuana dispensary employee who was pulled over on his way to work last May for failing to stop at a red light. Police found marijuana and a loaded revolver in his car. Although marijuana is legal for medical use in Oklahoma, Harrison was not an authorized patient, so he was charged under state law with illegal possession of marijuana and drug paraphernalia. He was also charged with violating 18 USC 922(g)(3), a federal law that makes it a felony, punishable by up to 15 years in prison, for an “unlawful user” of a “controlled substance” to receive or possess a firearm.

That rule, first imposed by the Gun Control Act of 1968, applies to all marijuana users, even in states that have legalized marijuana for medical or recreational use. Harrison challenged the federal charge, arguing that it was inconsistent with the Second Amendment, which protects “the right of the people to keep and bear arms.”

The government argued that Harrison’s marijuana use excluded him from “the public,” saying it was limited to “law-abiding citizens.” But in the landmark 2008 case, Dr District of Columbia v. Heller, Wyrick notes, the Supreme Court rejected that narrow reading of “the people.” The court held that the phrase “unambiguously refers to all members of the political community, not an unspecified subset.”

On the basis of that understanding, the court last year the bridge, there is a “strong presumption” that the right to carry a handgun in public for self-defense “belongs to all Americans.” It ruled that New York’s strict restrictions on that right violated the Second Amendment.

Because the text of the Second Amendment applies to Harrison’s gun ownership, Wyrick said, the bridge The test requires the government to show that the law it violated is consistent with the right to bear arms as it has been historically understood. To that end, the government cited seven statutes, one enacted by Virginia in 1655 and six enacted by states or territories from 1868 to 1899, stating that “expressly prohibited[ed]”Intoxicated person” from possessing a firearm.”

Allen Winsor, a federal judge in Florida who last fall dismissed a lawsuit challenging a federal ban on gun possession by marijuana users, thought those precedents were close enough. Wyrick disagrees.

“The restrictions imposed by each statute apply only when a person is actively intoxicated or actively using drugs,” Wyrick notes. “Under this law, no one’s right to armed self-defense is limited solely by the fact that he or she is a drug user.” Furthermore, “None of the laws seem prohibitive
Mere possession of a firearm.” and “Far from a complete prohibition applicable to all intoxicated persons everywhere, all laws appear to apply to public places or activities (or even a narrow subset of public places) and apply only to a narrow subset of intoxicated persons. .” Unlike 18 USC 922(g)(3), none of these statutes “prohibits the possession of firearms in the home for purposes of self-defense.”

In short, Wyrick said, the laws cited by the government “took a scalpel to the right of armed self-defense — narrowly carving out exceptions but leaving most rights in place.” 18 USC 922(g)(3), by contrast, “carries a sledgehammer to the right,” imposing “the most severe burden possible: an absolute prohibition on possessing any firearm in any place, for any use, under any circumstances—the person is actually intoxicated. or whether under the influence of a controlled substance.” This provision “enacts a complete deprivation of the fundamental right to possess a firearm for self-defense, to a person who consumes marijuana.”

In addition to laws regarding the use of firearms by drug addicts, the government has described a long tradition of denying gun rights to people convicted of crimes. “The United States argues that § 922(g)(3) is analogous to the nation’s ‘deep-rooted’ tradition of disarming convicted felons,” Wyrick wrote, “because unlawful users of controlled substances have engaged in criminal conduct.” They “must possess the substance to use it and possession is an offense under the Controlled Substances Act.”

Although Wyrick didn’t mention it, one problem with the argument applied to Harrison’s case is that common marijuana carries a maximum sentence of one year under federal law. Even if Harrison is convicted of that crime, he will have no criminal record.

In any case, the “deeply rooted” tradition that the government perceives is more recent and shorter than that. States did not begin limiting Second Amendment rights based on criminal convictions until the 1920s, and they focused primarily on crimes of violence. So did the federal government, which began imposing similar restrictions in the 1930s.

Under current federal law, by contrast, anyone convicted of a felony punishable by more than a year in prison, whether or not it involves violence, is prohibited from possessing a gun. Critics of that sweeping rule, including Supreme Court Justice Amy Coney Barrett and 3rd Circuit Judge Stefanos Bibus, argue that it is broader than the Second Amendment allows. Relevant history indicates that “the Legislature has the power to prohibit dangerous people from owning guns,” Barrett wrote in a 2019 dissent as a judge on the U.S. Court of Appeals for the 7th Circuit. “But that power extends only to persons who dangerous

Similar to Wyrick’s take. “History and tradition support the disarmament of individuals who have demonstrated their dangerousness through past violent, forceful or threatening behavior,” he said. “There is no historical tradition of disarming a person based solely on the fact that the person has engaged in criminal conduct.”

Such a policy, Wyrick warns, would be an open-ended license to deprive people of their Second Amendment rights. “A legislature could repeal the Second Amendment by making every crime, however minor, a felony, so as to deprive its citizens of the right to bear arms as much as possible,” he wrote. “Imagine a world in which New York State, to end the adverse judgment it received the bridgecould make mowing one’s lawn a felony so that it would then strip all its newly deemed ‘criminals’ of their right to possess firearms.”

Wyrick posed this as highly speculative to the government’s lawyers. “Remarkably,” he says, “when this lawn-mowing hypothetical argument was presented, and asked whether such a procedure would be consistent with the Second Amendment, the United States said ‘yes.’ So, in the eyes of the federal government, a state or the federal government can make anything at all a crime and then strip people convicted of that crime—no matter how innocent the conduct—of their fundamental right to own firearms.”

In addition to arguing that illegal drug users are guilty of crimes even if they have never been convicted, the government has compared them to “dangerous lunatics” whose liberty can be curtailed to protect public safety. “The mere use of marijuana does not indicate that someone is actually dangerous, analogous to a ‘dangerous lunatic,'” Wirick notes. “There are probably as many as 400,000 Oklahomans who use marijuana under the sanction of state law. Putting all those individuals in a category with ‘dangerous lunatics’ as required by the United States theory is a bridge too far.”

Wyrick was similarly unimpressed by the government’s argument that “drugs
Users, like the mentally ill, ‘have difficulty exercising self-control, making it dangerous for them to possess a deadly firearm.'” This argument “seems to have no limits,” he notes. “The Diagnostic and Statistical Manual of Mental Disorders, for example , lists autism, attention deficit disorder, and nicotine dependence as mental disorders. All of these groups ‘have difficulty in exercising self-control,’ and yet, it is difficult to see how any of these groups can be expressly barred from the right to armed self-defense on that basis.”

Wyrick similarly rejected the government’s argument that people deserve the right to armed self-defense only if they are “virtuous,” which marijuana users are not. He says that the claim that the Second Amendment includes a “vague ‘virtue’ requirement” is “belied by the historical record” and is “inconsistent with Heller

Nor was Wyrick persuaded by the argument that lawmakers could restrict gun rights to those deemed “loyal,” a policy the government supported by citing early bans on firearms possession by slaves, Catholics, loyalists, and Native Americans. Wyrick, who described the government’s reliance on “derogatory historical restrictions” as “concerning,” rejected the idea that such exceptions were included in the Second Amendment.

All these analogies imply that legislators have carte blanche to deprive people of their constitutional rights based on arbitrary and subjective distinctions: they need only characterize their targets as criminal, mentally ill, unscrupulous, or untrustworthy. Such broad discretion would make the right to bear arms legislate, a situation that would surely frustrate the Framers.