Banning gun ownership for cannabis users is unconstitutional, says federal judge

In a ruling issued Friday, a federal judge in Oklahoma said banning marijuana users from owning guns violates the Second Amendment. That limitation, US District Judge Patrick Wyrick concluded United States v. Harrisonis not “consistent with this nation’s historic tradition of regulating firearms”—a constitutional test established in a 2022 Supreme Court decision. New York State Rifle & 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, to receive or possess by an “unlawful person” a “controlled substance.” firearm.

That rule, first imposed by the Gun Control Act of 1968, applies to all cannabis users, even in states that have legalized marijuana for medical or recreational use. Harrison challenged the federal indictment, arguing 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 use of marijuana excluded him from being a “person,” a category it said was limited to “law-abiding citizens.” But in a significant case from 2008 District of Columbia v. Heller, Wyrick notes, the Supreme Court rejected that narrow interpretation of “the people.” The court said the phrase “unequivocally refers to all members of the political community, not to an unspecified subset.”

Based on this understanding, the Court said last year in the bridge, there is a “strong presumption” that the right to carry a handgun in public for self-defense “belongs to all Americans.” He ruled that strict restrictions on that right in New York violated the Second Amendment.

Because the text of the Second Amendment likely refers to Harrison’s possession of a gun, Wyrick says, the bridge The test requires the government to show that the law it violated is consistent with the right to bear arms as historically understood. To that end, the government cited seven laws, one passed by Virginia in 1655 and six passed by states or territories from 1868 to 1899, which it says “categorically prohibit[ed]”intoxicated persons “from possession of firearms”.

Allen Winsor, the federal judge in Florida who last fall threw out a lawsuit challenging a federal ban on marijuana users owning guns, thought those precedents were close enough. Wyrick disagrees.

“The restrictions imposed by each law applied only while the individual was intoxicated or actively using intoxicants,” notes Wyrick. “Under those laws, no one’s right to armed self-defense was limited by the mere fact that he was a drug user.” Furthermore, “none of the laws seem to have prohibited it
the mere possession of a firearm.” And “far from the complete ban being applicable to all intoxicated persons in all places, it appears that all laws applied to public places or activities (or even a narrow subset of public places), and one applied only to a narrow subset of intoxicated persons.” Unlike 18 USC 922(g)(3), none of these laws “prohibited the possession of a firearm in the home for the purpose of self-defense.”

In short, Wyrick says, the laws cited by the government “took a scalpel from the right to armed self-defense — narrowly carving out exceptions but leaving most rights in place.” 18 USC 922(g)(3), in contrast, “swings the sledgehammer to the right,” imposing “the heaviest possible burden: a total ban on the possession of any firearm, in any place, for any use, under any circumstances—regardless of whether the person is actually drunk or under the influence of a controlled substance.” The provision amounts to “a complete deprivation of the fundamental right to own a firearm for self-defense, turning entirely on the fact that the individual is a user of marijuana.”

Along with the laws dealing with the use of firearms by intoxicated persons, the government cited what it described as 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 ‘deeply entrenched’ tradition of disarming convicted felons,” Wyrick writes, “because illegal users of controlled substances have engaged in criminal conduct.” They “must possess the substance in order to use it, and possession is a felony under the Controlled Substances Act.”

Although Wyrick doesn’t mention it, one problem with that argument as applied to Harrison is that ordinary possession of marijuana carries a maximum sentence of one year under federal law. Even if Harrison had been convicted of that crime, he would have had no criminal record.

In any case, the “deep-rooted” tradition that the government perceives is more recent and nuanced than it implies. States did not begin limiting Second Amendment rights based on criminal convictions until the 1920s, originally focusing on crimes of violence. So did the federal government, which began imposing similar restrictions in the 1930s.

By contrast, under current federal law, anyone convicted of a felony punishable by more than a year in prison, whether or not it involves violence, is prohibited from owning a gun. Critics of that sweeping rule, including Supreme Court Justice Amy Coney Barrett and Third Circuit Court Judge Stephanos Bibas, argue that it is broader than the Second Amendment allows. Relevant history shows that “legislatures have the authority 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 Seventh Circuit. “But that power only extends to people who are dangerously.”

Wyrick’s opinion is similar. “History and tradition support disarming individuals who have demonstrated their danger through violent, coercive or threatening behavior in the past,” he says. “There is no historical tradition of disarming a person simply on the basis that that person has engaged in criminal conduct.”

Such a policy, Wyrick warns, would be an unlimited license to strip people of their Second Amendment rights. “The legislature could circumvent the Second Amendment by criminalizing any crime, no matter how minor, in order to deprive as many of its citizens as possible of the right to own firearms,” ​​he writes. “Imagine a world in which the state of New York, to end the adverse judgment it received in… the bridgecould declare lawn mowing a criminal offense so that he could then deprive all his newly declared ‘criminals’ of the right to own firearms.”

Wyrick posed this very hypothetically to government lawyers. “Incredibly,” he says, “when presented with this hypothetical lawn-mowing argument and asked whether such an approach would be consistent with the Second Amendment, the United States said ‘yes.’ can criminalize anything and then strip those convicted of that crime—no matter how harmless the behavior—of their fundamental right to own firearms.

Arguing that illegal drug users are guilty of criminal offenses even if they have never been convicted, the government has likened them to “dangerous lunatics” whose freedom can be restricted to protect public safety. “Just using marijuana doesn’t make someone actually dangerous, let alone analogous to a ‘dangerous lunatic,'” Wyrick notes. “There are probably nearly 400,000 Oklahomans who use marijuana under state law. To place all of these individuals in the category of “dangerous lunatics,” as the United States’ theory requires, is a step too far.”

Wyrick was also 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.'” That 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 addiction as mental disorders. All of these groups ‘have difficulty in self-control,’ and again, it is difficult to see how any of these groups could be categorically denied the right to armed self-defense on that basis.”

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

Wyrick was also unconvinced by the argument that lawmakers could limit the right to bear arms to people they deemed “trustworthy,” a principle the government supported by citing early bans on firearms by slaves, Catholics, Loyalists and Native Americans. Wyrick, who describes the government’s reliance on those “shameful historical restrictions” as “troubling,” rejects the idea that such exceptions are built into the Second Amendment.

All these analogies imply that legislators have carte blanche to strip people of their constitutional rights based on arbitrary and subjective distinctions: they need only label their targets as criminals, mentally ill, unvirtuous, or untrustworthy. Such broad discretion would subject the right to bear arms to legislative whims, a situation that would surely have horrified the Framers.

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