Second Amendment

5th Circuit Says Prosecuting a Cannabis Consumer for Possessing Guns Violated the Second Amendment

The decision casts further doubt on the constitutionality of a federal law that makes it a felony for illegal drug users to own firearms.


A federal appeals court this week cast further doubt on the constitutionality of a federal law that bans gun possession by illegal drug users, overturning the conviction of a Mississippi cannabis consumer who dared to exercise his Second Amendment rights. In a decision published on Wednesday, a three-judge panel of the U.S. Court of Appeals Court for the 5th Circuit unanimously concluded that the law, 18 USC 922(g)(3), is not "consistent with the Nation's historical tradition of firearm regulation."

That is the constitutional test required by the Supreme Court's 2022 decision in New York State Rifle & Pistol Association v. Bruen, which overturned that state's restrictions on public possession of handguns. The 5th Circuit's ruling, which upheld an "as applied" challenge, is technically limited to one criminal case. It nevertheless illustrates the difficulties that government lawyers have encountered in trying to satisfy the Bruen test, which made long-accepted gun restrictions newly vulnerable to constitutional challenges.

"Our history and tradition may support some limits on an intoxicated person's right to carry a weapon, but it does not justify disarming a sober citizen based exclusively on his past drug usage," the 5th Circuit says in an opinion by Judge Jerry E. Smith. "Nor do more generalized traditions of disarming dangerous persons support this restriction on nonviolent drug users."

The Firearms Policy Coalition (FPC), which filed a brief in support of this challenge to a Section 922(g)(3) prosecution, welcomed the decision. "As we explained in our brief, there is no tradition of disarming Americans based solely on their use of an intoxicant, and the government failed to prove that marijuana users are especially dangerous," said Joseph Greenlee, director of constitutional studies at the FPC Action Foundation. "Therefore, as the court held, § 922(g)(3) is inconsistent with America's tradition of firearm regulation and thus unconstitutional."

The case, United States v. Daniels, began with an April 2022 traffic stop in Hancock County, Mississippi. Patrick Darnell Daniels Jr. was pulled over for driving without a license plate. One of the officers was a Drug Enforcement Administration (DEA) agent, who "approached the vehicle and recognized the smell of marihuana." A search of the car discovered "several marihuana cigarette butts in the ashtray," along with a 9mm pistol and a semi-automatic rifle. Daniels was arrested and taken to a local DEA office. Although the DEA never conducted a drug test or otherwise investigated whether Daniels was under the influence of marijuana at the time of the stop, he admitted to smoking pot on a regular basis, something like 14 times a month.

That admission was enough to charge Daniels with violating Section 922(g)(3), a felony that was punishable by up to 10 years in prison at the time of his arrest. (Congress later raised the maximum sentence to 15 years.) A jury convicted Daniels in July 2022, and he was sentenced to nearly four years in prison, plus three years of supervised release. The felony conviction also meant he was permanently barred from owning guns under another provision of the same statute.

When Daniels challenged his indictment as a violation of the right to keep and bear arms, U.S. District Judge Louis Guirola Jr. said it was not clear that Daniels was part of "the people" protected by the Second Amendment, because his marijuana use meant he was not a "responsible, law-abiding citizen." And even assuming that cannabis consumption does not exclude someone from "the people," Guirola said, Section 922(g)(3) meets the Bruen test.

Guirola likened that ban to "longstanding prohibitions on the possession of firearms by felons and the mentally ill," which the Supreme Court has suggested are "presumptively lawful." He also noted that, while Congress did not enact Section 922(g)(3) until 1968, many states had previously imposed similar bans. As the 5th Circuit notes, Guirola's cursory opinion "engaged with few historical sources from the Founding or Reconstruction," instead relying on pre-Bruen cases in which other federal courts had concluded that Section 922(g)(3) "was supported by the historical practice of disarming those who 'exhibit a dangerous lack of self-control.'"

The 5th Circuit's ruling rejects the idea that "the people" are limited to "law-abiding citizens." In the landmark 2008 case District of Columbia v. Heller, Smith notes, the Supreme Court held that the phrase, which appears in the Bill of Rights five times, "unambiguously refers to all members of the political community, not an unspecified subset." The Court also held that "the Second Amendment right is exercised individually and belongs to all Americans."

References to gun ownership by "law-abiding citizens" in Heller and Bruen, Smith says, should not be read to mean that anyone who breaks the law thereby sacrifices his Second Amendment rights. Rather, as the 5th Circuit suggested in United States v. Rahimi, a 2023 decision against the federal ban on gun possession by people subject to domestic violence restraining orders, that phrase should be read as "shorthand" alluding to "people who were historically 'stripped of their Second Amendment rights.'"

Do marijuana users fall into that category? The closest historical analogs that the Biden administration has cited in defense of Section 922(g)(3) are laws—one from the 17th century, one from the 18th century, and a few from the late 19th century—that prohibited people from publicly carrying or firing guns while intoxicated. But those laws addressed a specific hazard—drunken gun handling—with narrow restrictions. They applied only in public and only to people who were actively intoxicated. They did not apply to private possession of firearms, let alone impose a categorical ban on gun ownership by drinkers.

"Under the government's reasoning," Smith says, "Congress could ban gun possession by anyone who has multiple alcoholic drinks a week…based on the postbellum intoxicated carry laws. The analogical reasoning Bruen prescribed cannot stretch that far."

The government also argued that Section 922(g)(3) is analogous to "longstanding prohibitions" on gun possession by "the mentally ill." That argument, Smith notes, is based on the premise that people who are "briefly mentally infirm as a result of intoxication" are similar to people who are "permanently mentally infirm" due to "illness or disability." But again, that argument makes sense only as applied to people who are currently intoxicated, as opposed to everyone who intermittently uses intoxicants, whether alcohol or illegal drugs such as marijuana.

Smith asks "which is Daniels more like: a categorically 'insane' person? Or a repeat alcohol user?" In light of "his periodic marihuana usage," Smith says, "Daniels is firmly in the latter camp. If and when Daniels uses marihuana, he may be comparable to a mentally ill individual whom the Founders would have disarmed. But while sober, he is like the repeat alcohol user in between periods of drunkenness."

Finally, the government argued that marijuana users are similar to "dangerous" classes of people who were traditionally disarmed, such as Catholics in 17th-century England and Loyalists during the Revolutionary War. Those laws, Smith says, were "generally based on concerns for the safety of the polity, but each disarmament also had its own unique political or social motivations. Almost all the laws disarming dissidents were passed during wartime or periods of unprecedented political turmoil. Indeed, Founding era governments did not disarm Loyalists because they were thought to lack self-control; it was because [they] were viewed as potential threats to the integrity of the state. The same was true of religious minorities—the perceived threat was as much political as it was religious."

Still, Smith concedes, it is true that "Founding-era governments took guns away from persons perceived to be dangerous." But a broad application of that principle, he notes, would be perilous to civil liberties: "The legislature cannot have unchecked power to designate a group of persons as 'dangerous' and thereby disarm them. Congress could claim that immigrants, the indigent, or the politically unpopular were presumptively 'dangerous' and eliminate their Second Amendment rights without judicial review. That would have 'no true limiting principle'…and would render the Second Amendment a dead letter."

Under Bruen, Smith says, "the government must show that a historical danger-based disarmament is analogous to the challenged regulation." Yet "the government identifies no class of persons at the Founding (or even at Reconstruction) who were 'dangerous' for reasons comparable to marihuana users."

Cannabis consumers "are not a class of political traitors, as British Loyalists
were perceived to be," Smith writes. "Nor are they like Catholics and other religious dissenters who were seen as potential insurrectionists. And even if we consider the
racially discriminatory laws at the Founding, Daniels is not like the minorities who the Founders thought threatened violent revolt."

Smith notes that "neither Congress nor the states disarmed alcoholics, the group most closely analogous to marihuana users in the 18th and 19th centuries." As with "the government's analogy to mental illness," he says, "we must ask: Which are marihuana users more like: British Loyalists during the Revolution? Or repeat alcohol users? The answer is surely the latter."

In short, Smith writes, "Daniels's § 922(g)(3) conviction is inconsistent with our 'history and tradition' of gun regulation." While the immediate impact of that assessment is limited to Daniels, it is clearly relevant to other prosecutions under that provision, as Judge Stephen Higginson notes in his concurring opinion.

As Higginson also notes, the Supreme has agreed to hear the Biden administration's appeal of the 5th Circuit's ruling in Rahimi. The outcome of that case should illuminate the extent to which Bruen threatens laws that deprive people of their Second Amendment rights based on legislative whims with little logical or historical basis.

The 5th Circuit joins at least two federal judges in concluding that Section 922(g)(3) fails the Bruen test. It also fails tests of fairness and common sense.

Although 38 states allow medical use of marijuana, including 23 that also have legalized recreational use, the drug is still prohibited under federal law. That means gun owners who use cannabis, even in states where it is legal, are guilty of the same felony as Daniels. If they falsely deny marijuana use on the form required for gun purchases from federally licensed dealers, they are guilty of two additional felonies, one punishable by up to five years in prison and the other by up to 10 years. The Bipartisan Safer Communities Act, which President Joe Biden signed into law last year, added yet another felony, punishable by up to 15 years in prison: "trafficking in firearms," which Congress defined broadly enough to cover cannabis consumers who buy guns.

Biden says marijuana use should not be treated as a crime, a position reflected in his mass pardon for people convicted of simple possession under federal law. Yet his administration simultaneously insists that marijuana use justifies the loss of Second Amendment rights, arguing that cannabis consumers are so dangerous that they cannot be trusted with guns, even when they are completely sober. According to Congress, in fact, they are so dangerous that the government is justified in sending them to prison for years if it catches them with guns. The fact that conservative judges appointed by Republican presidents readily recognize the fallaciousness of that argument underlines how flimsy it is.