A Federal Judge Says the Ban on Gun Possession by Cannabis Consumers Is Unconstitutional

In a ruling issued on Friday, a federal judge in Oklahoma said prohibiting marijuana users from owning guns violates the Second Amendment. That restriction, U.S. District Judge Patrick Wyrick concluded in United States v. Harrison, is not "consistent with this Nation's historical tradition of firearm regulation"—the constitutional test established by the Supreme Court's 2022 decision in New York State Rifle & Pistol Association v. Bruen.

The Oklahoma case involves Jared Michael Harrison, a marijuana dispensary employee who was pulled over last May on his way to work 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 with illegal possession of marijuana and drug paraphernalia under state law. He also was indicted for violating 18 USC 922(g)(3), a federal law that makes it a felony, punishable by up to 15 years in prison, for an "unlawful user" of a "controlled substance" to receive or possess a firearm.

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

Based on that understanding, the Court said last year in Bruen, there is a "strong presumption" that the right to carry handguns in public for self-defense "belongs to all Americans." It ruled that New York's tight restrictions on that right violated the Second Amendment.

Since the text of the Second Amendment presumptively applies to Harrison's gun ownership, Wyrick says, the Bruen test requires the government to show that the law he violated is consistent with the right to arms as it was historically understood. Toward that end, the government cited seven laws, one enacted by Virginia in 1655 and six enacted by states or territories from 1868 to 1899, that it said "categorically prohibit[ed]" intoxicated individuals "from possessing firearms."

Allen Winsor, a federal judge in Florida who last fall dismissed a lawsuit challenging the federal ban on gun possession by marijuana users, thought those precedents were close enough. Wyrick disagrees.

"The restrictions imposed by each law only applied while an individual was actively intoxicated or actively using intoxicants," Wyrick notes. "Under these laws, no one's right to armed self-defense was restricted based on the mere fact that he or she was a user of intoxicants." Furthermore, "none of the laws appear to have prohibited
the mere possession of a firearm." And "far from being a total prohibition applicable to all intoxicated persons in all places, all the laws appear to have applied to public places or activities (or even a narrow subset of public places), and one only applied 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 purposes of self-defense."

In short, Wyrick says, the laws cited by the government "took a scalpel to the right of armed self-defense—narrowly carving out exceptions but leaving most of the right in place." 18 USC 922(g)(3), by contrast, "takes a sledgehammer to the right," imposing "the most severe burden possible: a total prohibition on possessing any firearm, in any place, for any use, in any circumstance—regardless of whether the person is actually intoxicated or under the influence of a controlled substance." The provision amounts to "a complete deprivation of the core right to possess a firearm for self-defense, turning entirely on the fact that an individual is a user of marijuana."

In addition to laws dealing with firearm use by intoxicated people, the government cited what it described as a long tradition of denying gun rights to people convicted of felonies. "The United States argues that § 922(g)(3) is analogous to the Nation's 'deeply rooted' tradition of disarming convicted felons," Wyrick writes, "because unlawful users of controlled substances have engaged in felonious conduct." They "must possess the substance in order to use it, and possession is a felony under the Controlled Substances Act."

Although Wyrick does not mention it, one problem with that argument as applied to Harrison is that simple marijuana possession carries a maximum sentence of one year under federal law. Even if Harrison had been convicted of that crime, he would not have a felony record.

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

Under current federal law, by contrast, anyone who has been convicted of a crime punishable by more than a year of incarceration, whether or not it involved violence, is forbidden to possess a gun. Critics of that sweeping rule, including Supreme Court Justice Amy Coney Barrett and 3rd Circuit Judge Stephanos Bibas, argue that it is broader than the Second Amendment allows. The relevant history indicates that "legislatures have the power to prohibit dangerous people from possessing guns," Barrett wrote in a 2019 dissent as a judge on the U.S. Court of Appeals for the 7th Circuit. "But that power extends only to people who are dangerous."

Wyrick's take is similar. "History and tradition support disarming persons who have demonstrated their dangerousness through past violent, forceful, or threatening conduct," he says. "There is no historical tradition of disarming a person solely based on that person having engaged in felonious conduct."

Such a policy, Wyrick warns, would be an open-ended license to deprive people of their Second Amendment rights. "A legislature could circumvent the Second Amendment by deeming every crime, no matter how minor, a felony, so as to deprive as many of its citizens of their right to possess a firearm as possible," he writes. "Imagine a world where the State of New York, to end-run the adverse judgment it received in Bruen, could make mowing one's lawn a felony so that it could then strip all its newly deemed 'felons' of their right to possess a firearm."

Wyrick posed that very hypothetical to the government's lawyers. "Remarkably," he says, "when presented with this lawn-mowing hypothetical argument, and asked if such an approach would be consistent with the Second Amendment, the United States said 'yes.' So, in the federal government's view, a state or the federal government could deem anything at all a felony and then strip those convicted of that felony—no matter how innocuous the conduct—of their fundamental right to possess a firearm."

In addition to arguing that illegal drug users are guilty of felonies even if they have never been convicted, the government compared them to "dangerous lunatics" whose liberty can be curtailed to protect public safety. "The mere use of marijuana does not indicate that someone is in fact dangerous, let alone analogous to a 'dangerous lunatic,'" Wyrick notes. "There are likely nearly 400,000 Oklahomans who use marijuana under state-law authorization. Lumping all those persons into a category with 'dangerous lunatics,' as the United States' theory requires, is a bridge too far."

Wyrick was similarly unimpressed by the government's argument that "drug
users, like the mentally ill, 'have difficulty exercising self-control, making it dangerous for them to possess deadly firearms.'" That argument "appears to have no limit," he notes. "The Diagnostic and Statistical Manual of Mental Disorders, for example, lists autism, attention deficit disorder, and nicotine dependence as mental disorders. All those groups 'have difficulty exercising self-control,' and yet, it is hard to see how any of those groups could be categorically prohibited from the right to armed self-defense on that basis."

Wyrick likewise rejected the government's argument that people deserve the right to armed self-defense only if they are "virtuous," which marijuana users supposedly 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."

Nor was Wyrick persuaded by the argument that legislators may restrict gun rights to people they deem "trustworthy," a principle that the government supported by citing early bans on firearm possession by slaves, Catholics, loyalists, and Native Americans. Wyrick, who describes the government's reliance on those "ignominious historical restrictions" as "concerning," rejects the idea that such exceptions were incorporated into the Second Amendment.

All of 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 felonious, mentally ill, unvirtuous, or untrustworthy. Such broad discretion would make the right to arms contingent on legislative whims, a situation that surely would have dismayed the Framers.