Every state prohibits driving while intoxicated, recognizing that alcohol use impairs the ability to safely operate a motor vehicle and increases the risk of potentially lethal accidents. Using a cellphone also impairs the ability to safely operate a motor vehicle and increases the risk of potentially lethal accidents. It therefore makes sense to prohibit cellphone users from owning cars.
That faulty syllogism bears more than a passing resemblance to the Biden administration's defense of the federal law that makes it a felony for cannabis consumers to possess firearms. That law, the U.S. Department of Justice (DOJ) argues in an appeal brief filed last week, is "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. To make its case, the government cites laws passed in the 17th, 18th, and 19th centuries that prohibited people from carrying or firing guns while intoxicated, which it implausibly argues are analogous to the gun ban for marijuana users that Congress imposed in 1968.
The DOJ is asking the U.S. Court of Appeals for the 11th Circuit to uphold a 2022 decision in which Allen Winsor, a federal judge in Florida, dismissed a Second Amendment challenge to that gun ban by state-authorized medical marijuana patients. In the 10th Circuit, meanwhile, the Biden administration is appealing a contrary 2023 ruling by Patrick Wyrick, a federal judge in Oklahoma who concluded that the law, 18 USC 922(g)(3), is unconstitutional.
The government's 11th Circuit brief wisely eschews the DOJ's earlier reliance on what Wyrick called "ignominious historical restrictions" that disarmed slaves, Catholics, loyalists, and Native Americans. Those precedents, the government had argued, showed that legislators have the authority to withhold gun rights from any group they deem "untrustworthy." But the DOJ is still arguing that "the people" protected by the Second Amendment are limited to "law-abiding, responsible citizens," a category that it says does not include cannabis consumers or anyone else who breaks the law, no matter how trivial the offense.
That claim seems inconsistent with President Joe Biden's position that marijuana use should not be treated as a crime. But the meat of the Justice Department's argument is the claim that early laws targeting drunken gun handlers establish a "historical tradition" that justifies threatening cannabis consumers with up to 15 years in prison if they dare to exercise their Second Amendment rights. That argument glosses over crucial details that show these "historical analogues" were fundamentally different from the law that the Biden administration is defending.
"As early as 1655," the DOJ notes, "Virginia prohibited "shoot[ing] any gunns at
drinkeing [events]." A 1771 New York law "likewise barred firing guns during the New Year's holiday," a regulation that "was aimed at preventing 'the great Damages…frequently done on [those days] by persons…being often intoxicated with Liquor.'" In 1731, Newport, Rhode Island, "forbade the firing of 'any gun or pistol' in any tavern at night, a time and place where people were at a heightened risk of drinking to excess."
Notably, those colonial laws applied in public places, and they were aimed at the specific danger posed by drunken gun use. By contrast, 18 USC 922(g)(3) is a categorical ban on firearm possession in any setting by any "unlawful user" of a "controlled substance," regardless of whether he carries or fires a gun while intoxicated. An analogous rule regarding alcohol would deny Second Amendment rights to all drinkers, include occasional or moderate consumers who never handle guns irresponsibly.
The 19th century laws cited by the government likewise were narrowly tailored to address a public hazard. An 1867 Kansas law made it misdemeanor for "any person under the influence of intoxicating drink" to "carr[y] on his person a pistol…or other deadly weapon." An 1878 Mississippi law banned the sale of concealable, deadly weapons to "any person intoxicated" when the seller knew the buyer was "in a state of intoxication." An 1879 Missouri law prohibited people from carrying "any kind of firearms…when intoxicated or under the influence of intoxicating drink."
An 1883 Wisconsin law said "it shall be unlawful for any person in a state of intoxication" to "go armed with any pistol or revolver." An 1890 Oklahoma law said "public officers" were not allowed to carry "arms" while "under the influence of intoxicating liquors." In 1899, South Carolina forbade "boisterous conduct" while "under the influence of intoxicating liquors," including "discharg[ing] any gun" near a public road. A 1909 Idaho law made it a crime for "any person" to "have or carry" a "pistol, revolver, gun or any other deadly or dangerous weapon" while "intoxicated" or "under the influence of intoxicating drinks."
All of these laws were limited to people who were actively intoxicated, who were not permitted to carry or fire guns in public (or, in Mississippi's case, buy guns). The state laws cited by the government "imposed a far narrower burden" than 18 USC 922(g)(3) "and, as a result, left ample room for the exercise of the core right to armed self-defense," Wyrick noted in his February 3 decision:
First, the restrictions imposed by each law only applied while an individual was actively intoxicated or actively using intoxicants. 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. Second, none of the laws appear to have prohibited the mere possession of a firearm. Third, 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 ["public officers"]. Importantly, none appear to have prohibited the possession of a firearm in the home for purposes of self-defense.
While those laws "took a scalpel to the right of armed self-defense—narrowly carving out exceptions but leaving most of the right in place—§ 922(g)(3) takes a sledgehammer to the right," Wyrick added. "Recall that § 922(g)(3) imposes 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. It is 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. Section 922(g)(3)'s 'burden on the right of armed self-defense' is thus not 'comparable' to the seven historical intoxication laws."
How does the DOJ deal with these points in its 11th Circuit brief? By ignoring them.
"The founders recognized that intoxicating substances render users unable to responsibly bear arms," the government's lawyers say. "Historical legislatures accordingly adopted a variety of measures calculated to separate firearms and alcohol….Both Section 922(g)(3) and historical laws mitigate the 'mischief' threatened when intoxicated individuals 'go abroad with fire-arms.'…Both Section 922(g)(3) and historical laws disarm individuals who currently or recurringly use drugs that impair their ability to possess firearms responsibly."
Those laws "separate[d] firearms and alcohol" by saying people were not allowed to publicly carry guns when they were drunk, not by saying people who drink may not possess firearms, period. They aimed to address the danger posed by "intoxicated individuals" who "go abroad with fire-arms" by prohibiting precisely that sort of behavior. As Wyrick noted, 18 USC 922(g)(3) goes much further than that.
The DOJ's dubious logic is clear in this passage: "Plaintiffs do not suggest they will surrender their firearms every time they use marijuana. Plaintiffs will accordingly possess firearms while intoxicated and thus fall within the class of individuals subject to disarmament under these historical laws."
Contrary to the implication, "these historical laws" did not require gun owners to "surrender their firearms" whenever they had a drink or two. They did not prohibit people from "possess[ing] firearms while intoxicated" in the sense of retaining ownership of those weapons and keeping them at home when they visited a tavern. The laws specifically forbade the conjunction of two activities that were otherwise legal: 1) consuming alcoholic beverages and 2) carrying guns in public.
Returning to the opening analogy, a person's status as a drinker does not disqualify him from owning a car, and he retains legal ownership of his car even when he is intoxicated, provided he does not try to drive it in that condition. Logically, the same distinctions should apply to marijuana use and gun ownership, which unlike car ownership is explicitly protected by the Constitution.
"The question is not, as plaintiffs seem to suggest, whether a modern law mirrors a 'historical twin,'" the DOJ says. "Rather, the question is whether the modern law is 'relevantly similar' to a 'historical analogue.'" But the government's attempt to argue that laws targeting gun-toting drunks are "relevantly similar" to a law targeting anyone who consumes marijuana, regardless of the circumstances, relies on slippery reasoning and deliberate obfuscation.
The Biden administration thinks the 11th Circuit (and the 10th) should defer to "Congress's judgment that marijuana is a controlled substance the users of which cannot responsibly possess firearms." When Congress passed the Gun Control Act in 1968, the DOJ says, it was worried about the "ready availability" of guns to "narcotic addicts," "criminals," and "others whose possession of firearms is similarly contrary to the public interest." Legislators also mentioned "juveniles," "mental defectives," and "armed groups who would supplant duly constituted public authorities."
According to the Biden administration, it was perfectly reasonable to put cannabis consumers in the same category as "narcotic addicts," "criminals," children, armed revolutionaries, and "mental defectives." The DOJ explicitly compares marijuana users to "the mentally ill," saying both can be "dangerous when armed." The government approvingly quotes a 2016 decision in which the U.S. Court of Appeals for the 9th Circuit averred that illegal drug users, "like those with mental illnesses," are apt to "experience altered or impaired mental states that affect their judgment and that can lead to irrational or unpredictable behavior."
The DOJ also quotes a 1946 history noting that "at the founding 'those afflicted with mental diseases were generally treated as though they had been stripped of all… their rights and privileges.'" In the 18th century, the government adds, quoting a 2009 law review article, "justices of the peace were authorized to 'lock up' 'lunatics' who were 'dangerous to be permitted to go abroad.'" Evidently, marijuana users should be thankful that they have been stripped only of their Second Amendment rights and not all of their other "rights and privileges," including the right to be free of arbitrary and indefinite imprisonment.
The constitutional question is not whether this attitude makes sense. It manifestly does not, as Biden himself should be willing to concede, since he decries the injustice of criminalizing marijuana use. The constitutional question, as framed by the Supreme Court in Bruen, is whether the policy based on that attitude is "consistent with this Nation's historical tradition of firearm regulation." If these are the best "historical analogues" the government can come up with, the answer seems clear.