Constitutionality of Gun Ban for Cannabis Users

A potentially monumental cannabis case is going through the federal court system. At stake are the gun rights of those who consume cannabis following a government ban on marijuana users owning firearms.

Now, a panel of judges on the U.S. Court of Appeals for the Tenth Circuit is hearing arguments questioning whether the ban on firearms for marijuana users itself is constitutional and whether it is also within the power of the panel even to review a lower court’s previous decision. A patchwork of state and federal marijuana and gun laws is making things tricky for law-abiding, marijuana-smoking citizens looking to exercise their Second Amendment rights.

Gun Ban for Cannabis Users

It can be challenging to keep up with the times, especially for slow-to-change American laws. The Federal Gun Control Act of 1968 and the Federal Omnibus Consolidated Appropriations Act of 1997 make it illegal for specific individuals to possess firearms and ammunition. Individuals such as those convicted of significant crimes and fugitives from justice are prohibited from possessing guns. However, federal laws also make it illegal for marijuana users to own guns lawfully, specifying that “Persons who are unlawful users of or are addicted to narcotics or any other controlled substances” cannot legally own or possess a gun. Federal law also prohibits medical marijuana users from possessing or buying firearms and ammunition, even in states where recreational or medical marijuana consumption is legal.

Many cannabis enthusiasts who want to exercise their Second Amendment rights call the law outdated and extreme, considering cannabis is legal in numerous states across the country. However, it remains a Schedule I controlled substance according to the federal government, meaning its consumption can preclude an individual from owning or possessing a gun according to federal law.

Court Cases Challenge Constitutionality of Federal Law

Lawyers are now on the front lines, battling for the rights of marijuana users to own and possess firearms legally.

The U.S. Court of Appeals for the Tenth Circuit is hearing a gun ownership case following a district court’s dismissal of an indictment against an Oklahoma man. During a traffic stop, law enforcement officials found cannabis and a handgun in the man’s vehicle. Authorities charged the man, citing the statute banning marijuana users from possessing firearms. In an appellate brief filed the previous year, lawyers argued that guns and drugs are a dangerous combination. They also argued that the law views drug users as “presumptively risky people,” meaning the system or the public cannot trust the person to possess a firearm and may present a threat to the public.

The oral arguments heard by the higher court centered around whether the individual was under the influence of marijuana while in possession of the firearm. The individual was not intoxicated at the time of the traffic stop. However, government lawyers say the law prohibits unlawful users of illegal substances from possessing firearms and makes no mention of intoxication being the sticking point as to whether a drug user can or cannot possess a gun. The attorney for the individual charged in the traffic stop says any prohibition on gun ownership by cannabis users is going overboard.

Judges did not indicate how they plan to rule after oral arguments in the case. However, this isn’t the only pending case working its way through the U.S. legal system involving gun rights and cannabis users.

Texas and Louisiana

One U.S. appeals court ruled that a Texas gun owner could not be prosecuted for violating the federal firearms ban, saying that it is unconstitutional to disarm the person because of her past pot-smoking habits.

Another New Orleans-based Fifth U.S. Circuit Court of Appeals noted that marijuana users or not, community members have the presumptive right to bear arms under the U.S. Constitution’s Second Amendment.

Meanwhile, in Pennsylvania…

Lawyers for a Pennsylvania district attorney are also suing the federal government over its ban on gun ownership by cannabis users. The district attorney, Robert Greene, has a medical marijuana card, which prohibits him from buying or owning a gun. Now, he is going to bat for himself and other individuals in Pennsylvania over gun ownership rights. Nearly 400,000 residents have a medical marijuana card, and none of those people can lawfully obtain or possess a firearm.

In a new 41-page brief, his lawyers push back against arguments that the current ban is constitutional and aligns with other firearms restrictions for dangerous, mentally ill, and intoxicated individuals. The recently filed brief makes an interesting point, arguing that laws prohibiting dangerous individuals from obtaining guns “only permitted the deprivation of one’s Second Amendment rights after a hearing, providing for due process, and then, only temporarily.” While temporary in theory, the brief argues that in practice, the ban on cannabis users is much broader. It alleges that the rule prohibits individuals from gun ownership even when the person is not using the substance at the precise time the person seeks to purchase or possess a gun.

The filing goes on to say that even if a person registers for the state’s medical marijuana program, it “results in an individual constituting an unlawful user.” It is unfair to ban an individual from gun ownership simply because, at some point in time, they may be “intoxicated” by using lawful medicine.

The Department of Justice asked the court to dismiss the case. DOJ l; lawyers are arguing that marijuana’s physical and mental effects make it dangerous for a user to handle firearms.

Summing It Up

The Supreme Court has yet to weigh in on the subject, instead sending many gun cases involving cannabis back to lower courts after it ruled on United States v. Rahimi, in which the high court affirmed the government’s right to restrict gun rights. That case involved an individual with restraining orders and a history of domestic violence. The court determined the government has the power to uphold the ability to restrict individuals who may be a physical threat from owning or possessing a gun.