Cannabis’ conflicting legal status at both the federal and state levels has not only affected operators and institutions alike, but also registered patients and adult-users. While state legalization offers protections for cannabis users within the boundaries of that state, the federal prohibition still creates legal gray areas, particularly around employment, housing, gun ownership, and travel. Specifically, cannabis users are facing infringement on their Second Amendment rights due to 18 U.S.C. § 922(g)(3), which bars unlawful controlled substances users or addicts of a controlled substance from possessing a firearm. However, in 2022, the United States Supreme Court vastly expanded gun ownership rights with its decision in New York State Rifle & Pistol Association, Inc. v. Bruen. Due to the evolving legal landscape regarding gun ownership, will there be a pathway for cannabis users to take back their Second Amendment rights?
Shifting Legal Landscape:
As set forth above, section 922(g)(3) of the 1968 Gun Control Act makes it illegal “for any person who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802))” to possess a firearm. Due to this restriction, the United States Department of Justice’s Bureau of Alcohol, Tobacco, Firearms, and Explosives requires individuals to confirm whether they are a cannabis user prior to purchasing a firearm, even in state’s that have a legal cannabis program. However, the 2022 decision from the United States Supreme Court in New York State Rifle & Pistol Association, Inc. v. Bruen (hereinafter Bruen) has opened a pathway for challenging restrictions cannabis users face regarding gun ownership.
In Bruen, the United States Supreme Court in a 6-3 majority deemed New York’s concealed carry law unconstitutional as it required an individual to demonstrate a “proper cause” existed prior to a license being issued. Per New York law, the “proper cause” requirement mandated that individuals must show a need for self-protection that is differentiated from that of the public. In accordance with their ruling, the Justices set forth a new standard to determine the constitutionality of firearm restrictions placed on gun owners. Based on the plain text of the Second Amendment, the government must justify its regulation by demonstrating that it is consistent with the country’s historical traditions regarding firearm regulations.
Moreover, United States v. Rahimi (hereinafter Rahimi) sheds further light on how this new standard is applied in the context of history and tradition. In Rahimi, the Court had to determine whether a federal law banning individuals from possessing a firearm while under a domestic violence protective order violated the Second Amendment. Rather than requiring the government to demonstrate that there was an identical law existing at the time of our nation’s founding that allowed such specific restrictions on gun ownership, the Justices deemed that it is sufficient for the government to rely on “a well-established and representative historical analogue” to implement such restrictions.
Cannabis Challenges Since Bruen:
After the expansion of gun ownership under Bruen, challenges arose over the prosecution of gun owners who admitted to using cannabis. In United States v. Patrick Darnell Daniels, Jr., Daniels was found guilty of violating 18 U.S.C. § 922(g)(3) after officers pulled him over for driving without a license plate and searched the vehicle due to it smelling of cannabis. During the vehicle search, they found two loaded firearms along with cannabis cigarette butts. After receiving his Miranda rights, Daniels informed officers that he regularly consumed cannabis. On appeal to the Fifth Circuit Court of Appeals, the Court relied on Bruen for its determination that Daniels’ conviction was inconsistent with our nation’s “history and tradition of gun regulation” as they differentiated between using a firearm while currently under the influence versus an individual possessing a firearm who has a history of drug use. This case is currently on appeal to the United States Supreme Court.
Most recently, in United States v. Connelly, the Fifth Circuit Court of Appeals rejected the government’s argument that cannabis users are more inherently dangerous than other citizens; thus, deeming it unconstitutional to restrict a “non-violent, marijuana smoking gunowner” from owning a firearm. In this case, officers reported to Connelly’s residence after shots were fired at her home due to a conflict arising between her husband and their neighbor. During her conversation with the officers, Connelly stated she sometimes smokes cannabis, and after a search was conducted of her home, officers found not only drug paraphernalia, but also numerous guns, which some were registered in her name. In its argument, the government relied on the ruling in Rahimi that “presumptively risky people” can have their gun ownership rights restricted, and as such, cannabis users should be included in that umbrella. The Court was not persuaded as restrictions placed on domestic abusers or the mentally ill was not sufficiently similar to its laws against firearm possession by drug users.
Now with the expansion made under Bruen, medical cannabis patients are challenging the restrictions placed on them for using a substance for medical purposes that is legal under state law, but not federal. In the Eleventh Circuit Court of Appeals, a group of Florida medical patients are asserting that their Second Amendment rights are being violated as they cannot lawfully purchase a gun, so long as they are using medical cannabis legally under the state’s program. Most recently, a medical cannabis user and former District Attorney in Pennsylvania is challenging 18 U.S.C. § 922(g)(3) in the District Court for the Western District of Pennsylvania arguing that it is in violation of the Bruen standard as there is “no historical tradition of categorically banning individuals from keeping and bearing arms due to their use of a medicinal substance.”
Conclusion:
Although some states across the country have tried to preserve gun ownership rights for cannabis users, such protections cannot supersede federal law. As such, with the Bruen decision carving a path for constitutional challenges to be made, many are hopeful that cannabis users will finally be free of such restrictions.