Federal Ban On Gun Possession By Marijuana Consumers Challenged In Federal Appeals Court Arguments

Lawyers in a federal appeals court case faced off this week over when the government may lawfully disarm someone for using marijuana, with the Department of Justice (DOJ) arguing that merely a person’s recent use of the drug is sufficient to establish that they’re in violation of the law and should not legally be able to possess a gun.

Judges on the U.S. Court of Appeals for the Fifth Circuit, however, pushed back on the government’s position, noting at oral argument on Tuesday that a recently published opinion within the same judicial circuit held that while “some limits on a presently intoxicated person’s right to carry a weapon” may be constitutional, “disarming a sober person based on past substance usage” is not.

The arguments come as the three-judge Fifth Circuit panel reconsiders the case of U.S. v. Daniels, which earlier this year was set to be considered by the U.S. Supreme Court but was among a number of firearms-related cases remanded back to lower courts following a separate ruling about firearms and domestic violence.

A Fifth Circuit panel previously ruled in favor of the individual in the case, who faced a conviction after admitting to having used cannabis while in possession of a gun. The court said the federal statute known as Section 922(g)(3), which prevents someone who is an “unlawful user” of an illegal drug from buying or possessing firearms, was unconstitutional.

Central to Tuesday’s oral arguments were questions of whether the other Fifth Circuit opinion about gun ownership by marijuana users, known as U.S. v. Connelly, was binding on the appellate panel. Attorney Jonathan D. Buckner, representing the federal government, said he felt the court “should revisit Connelly.”

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Buckner said that even if Connelly is the new Fifth Circuit standard for when the federal prohibition on gun ownership by marijuana users is constitutional, that doesn’t mean cannabis use has to occur at the same time a person is holding a firearm.

“I read Connelly as allowing for a conviction to occur if someone is engaged in that use, even if it’s not at the contemporaneous time that they possess the firearm,” he told the panel. “If you want to own a gun, quit using drugs.”

Judges noted that the Connelly ruling “talks about a very tight temporal nexus” between marijuana use and firearm possession. “It’s really hard for me to think you can reconcile Connelly with weeks earlier using marijuana,” one said.

Buckner responded that he recognized Connelly “requires a closer temporal use,” but he argued that convicting the defendant of unlawful firearm ownership should be warranted if “I can show that he is still a user.”

Lawyers for Daniels, meanwhile, told the court that the government is merely seeking to expand its ability to restrict gun ownership by people who use or have used marijuana.

“As I was listening to opposing counsel,” Kimberly G. Gore, who argued on Daniels’s behalf on Tuesday, told judges during rebuttal that “the one thing that kept running through my head was that the government is looking for a way to broaden the scope of its ability to restrict a fundamental right.”

“He kept referring to ‘active user,’ ‘active user,’” she said, “but that’s not the standard. The standard under Connelly, and the standard you set in the initial Daniels decision, was active intoxication.”

In Connelly, the court ruled that the government failed to demonstrate that lawful restrictions on gun ownership by domestic abusers or the mentally ill were sufficiently similar to its law against firearm possession by drug users.

“Laws designed to disarm the severely mentally ill do not justify depriving those of sound mind of their Second Amendment rights,” judges in that case wrote. “The analogy stands only if someone is so intoxicated as to be in a state comparable to ‘lunacy.’”

Judges on Tuesday seemed skeptical of Gore’s argument that her client’s conviction should simply be thrown out as the result of the Connelly case. They suggested instead that the case might be remanded to a district court and retried, potentially giving prosecutors a chance to argue that Daniels was actively using marijuana at the time he possessed a gun.

Gore protested that officers simply smelling marijuana at the time of Daniels’s arrest doesn’t demonstrate active use. “You can smell old cigarettes,” she told the court.

“That’s a good closing argument” to be used at a retrial, one of the judges replied.

The Fifth Circuit panel, consisting of Judges Edwin Smith, Stephen A. Higginson and Don Willett, took the matter under submission and did not indicate when to expect a ruling.

Courts across the country have been considering the constitutionality of the government’s ban on gun and ammunition ownership by people who use marijuana, which remains illegal under federal law. And generally jurists have been skeptical of the sweeping Second Amendment restriction.

DOJ, however, has doubled down on the marijuana gun ban. In a separate case in federal court in Pennsylvania, which is not part of the Fifth Circuit, attorneys for the federal government argued recently that the ban is constitutional and should remain in place, arguing it aligns with other restrictions on gun ownership by dangerous, mentally ill or intoxicated people.

That case was filed earlier this year by Warren County District Attorney Robert Greene, a registered medical marijuana patient in the state. Greene teamed up with the Second Amendment Foundation (SAF) to file suit in January against the government, including U.S. Attorney General Merrick Garland and the heads of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) and the FBI.

The original suit says that while Greene “intends to lawfully purchase, possess, and utilize firearms and ammunition so that he may exercise his constitutional right to keep and bear arms for self-defense and all other lawful purposes,” he’s forbidden from doing so because of his status as a state-certified medical cannabis patient.

In a brief filed this summer in the Daniels case, meanwhile, DOJ pointed to another recent opinion Supreme Court decision, U.S. v. Rahimi, that upheld the government’s ability to limit the Second Amendment rights of people with domestic violence restraining orders. Attorneys argued that the decision reinforced the constitutionality of restricting firearms for cannabis consumers, whom the government called “presumptively risky people.”

DOJ has made similar arguments in a case in a separate case in the U.S. Court of Appeals for the Eleventh Circuit. In that matter, a group of Florida medical cannabis patients contends that their Second Amendment rights are being violated because they cannot lawfully buy firearms so long as they are using cannabis as medicine, despite acting in compliance with state law.

The Biden administration, meanwhile, argues that medical marijuana patients who possess firearms “endanger public safety,” “pose a greater risk of suicide” and are more likely to commit crimes “to fund their drug habit.”

The Justice Department has claimed in multiple federal cases over the past several years that the statute banning cannabis consumers from owning or possessing guns is constitutional because it’s consistent with the nation’s history of disarming “dangerous” individuals.

Last year, for example, the Justice Department told the U.S. Court of Appeals for the Third Circuit that historical precedent “comfortably” supports the restriction. Cannabis consumers with guns pose a unique danger to society, the Biden administration claimed, in part because they’re “unlikely” to store their weapon properly.

Earlier this year, meanwhile, President Joe Biden’s son Hunter was convicted by a federal jury of violating statute by buying and possessing a gun while an active user of crack cocaine.

Two Republican congressmen challenged the basis of that conviction, with one pointing out that there are “millions of marijuana users” who own guns but should not be prosecuted.

Meanwhile, some states have passed their own laws either further restricting or attempting to preserve gun rights as they relate to marijuana. Recently, for example, a Pennsylvania lawmaker introduced a bill meant to remove state barriers to medical marijuana patients carrying firearms.

Colorado activists also attempted to qualify an initiative for November’s ballot that would have protected the Second Amendment rights of marijuana consumers in that state, but the campaign’s signature-gathering drive ultimately fell short.

The U.S. District Court for the Western District of Oklahoma ruled last year that the ban prohibiting people who use marijuana from possessing firearms is unconstitutional, with the judge stating that the federal government’s justification for upholding the law is “concerning.”

In U.S. District Court for the Western District of Texas, a judge ruled last April that banning people who use marijuana from possessing firearms is unconstitutional—and it said the same legal principle also applies to the sale and transfer of guns.

Last August, meanwhile, ATF sent a letter to Arkansas officials saying that the state’s recently enacted law permitting medical cannabis patients to obtain concealed carry gun licenses “creates an unacceptable risk,” and could jeopardize the state’s federally approved alternative firearm licensing policy.

Shortly after Minnesota Gov. Tim Walz (D) signed a legalization bill into law last year, ATF issued a reminder emphasizing that people who use cannabis are barred from possessing and purchases guns and ammunition “until” federal prohibition ends.

In 2020, ATF issued an advisory specifically targeting Michigan that requires gun sellers to conduct federal background checks on all unlicensed gun buyers because it said the state’s cannabis laws had enabled “habitual marijuana users” and other disqualified individuals to obtain firearms illegally.

The Hawaii attorney general’s office also recently released data showing that, of the roughly 500 firearm permit applications denied by officials in the state last year, more than 40 percent were rejected because of applicants’ status as medical marijuana patients.

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