Court Rules Banning Marijuana Users from Owning Guns is Unconstitutional

The Fifth Circuit Court of Appeals dealt another blow to the gun control regime by ruling the law banning marijuana users from owning firearms is unconstitutional.

In December 2021, El Paso, Texas, police responded to a call for “shots fired.” When they arrived on the scene, police found John Connelly standing on a neighbor’s porch with a shotgun. Police promptly arrested the man before speaking to his wife. His wife, Paola, told police she used marijuana to help with sleep and anxiety. Police would search the couple’s house, where they would turn up drug paraphernalia used for smoking marijuana. Also, in the search, police would turn up firearms, one of which belonged to the woman. Paola Connelly was not under the effects of any drugs when police searched the residence.

Police would charge Paola Connelly with “possessing firearms and ammunition as an unlawful user of a controlled substance” and “providing firearms and ammunition to an unlawful user of a controlled substance.” Both charges are federal offenses because federal law says you can not use marijuana and own a firearm even if you have a prescription for the drug. Paola did not have a record of violent offenses, and her attorney argued that the charges she faced were unconstitutional.

Ms. Connelly would file a motion to dismiss in District Court with her attorney, arguing the law was unconstitutional. The District Court would reject the motion. After the Supreme Court’s Rahimi decision, Ms. Connelly would file for a motion to reconsider. SCOTUS said in Rahimi that a dangerous person could be temporarily disarmed, but the woman didn’t have a violent past and didn’t fit the definition of “dangerous.” This time, the District Court agreed and dismissed the case, leading the government to appeal to the Fifth Circuit Court of Appeals.

Under the Bruen standard, a law has to be consistent with the original text, tradition, and history of the Second Amendment. The woman’s lawyers argued that she was part of “the people” and the arms in question were protected under the Second Amendment. The first step of Bruen is to see if the law is consistent with the text of the Second Amendment. The burden of proof falls to the party that envokes Bruen. In this case, that was the defense. They argued that Paola was part of the “political class,” and the three-judge panel agreed. They also argued that the firearms involved were clearly “protected arms.” The judges also agreed with the defense.

Now that step one of Bruen was satisfied, the judges moved to step two of a Bruen analysis. In step two, the burden falls on the government to show that a law is consistent with the history and tradition of firearms regulations from the founding era. The government does that by presenting historical analogs from the founding era. Most legal scholars agree that the founding era started with the ratification of the Second Amendment in 1791. The farther from the founding era, the less weight a law has as an analog. Rahimi said a referenced law doesn’t have to be a “historical twin,” but it must be similar.

The government tried to use laws from the founding era that disarmed people who felt they were dangerous. One example that was given is the banning of British Loyalists from having firearms. The judges rejected that argument, stating that the ban on marijuana users owning firearms would be more akin to the founders banning people who drank alcohol from owning guns. The judges pointed out that the founders drank copious amounts of alcohol. The judge stated the government may be able to prevent someone who is intoxicated from carrying a firearm. Still, Ms. Connelly was not under the influence of drugs at the time of the arrest and was not a dangerous person.

The government also tried to state the founders prevented the mentally ill from owning guns. Still, Ms. Connelly does not have a mental illness besides her struggles with anxiety that plague millions of Americans. The judges also stated even if she was, the earliest law preventing the mentally ill from owning guns is from 1968, almost 200 years removed from the founding era. This period was too significant for the law to give any guidance.

“There are no clear sets of positive-law statutes concerning mental illness and firearms from the Founding. Indeed, ‘[o]ne searches in vain through eighteenth-century records to find any laws specifically excluding the mentally ill from firearms ownership,’” the judges wrote. “In fact, the federal ban on gun possession by those adjudged mentally ill was enacted no sooner than 1968, the same year as § 922(g)(3). At best, scholars suggest that the tradition was implicit at the Founding because, ‘in eighteenth-century America, justices of the peace were authorized to ‘lock up’ ‘lunatics’ who were ‘dangerous to be permitted to go abroad.’’ Put otherwise: if someone was so mentally ill that he presented a danger to themselves or others and could therefore be imprisoned (a greater restriction on liberty), it follows that he could also be disarmed (a lesser restriction).”

The judge upheld the motion to dismiss. The government can ask for the Fifth Circuit to take the case en banc, where the entire bench will hear the case, but there is no guarantee that the case will be granted an en banc hearing. If it is, it is a long shot that the en banc will reverse the panel’s decision. That leaves the government petitioning the Supreme Court to take up the case, but that is probably a losing proposition. The most likely bet is for the government to drop the case.

About John Crump

Mr. Crump is an NRA instructor and a constitutional activist. John has written about firearms, interviewed people from all walks of life, and on the Constitution. John lives in Northern Virginia with his wife and sons, follow him on X at @crumpyss, or at www.crumpy.com.