The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Federal Ban on Gun Possession by Drug Users Is Often Unconstitutional
"[O]ur history and tradition may support some limits on a presently intoxicated person's right to carry a weapon ..., but they do not support disarming a sober person based solely on past substance usage."
An excerpt from today's opinion in U.S. v. Connelly, written by Judge Kurt Engelhardt, joined by Judges Jerry Smith and Irma Carrillo Ramirez:
Paola Connelly is a non-violent, marijuana smoking gunowner. El Paso police came to her house in response to a "shots fired" call. When they arrived, they saw John, Paola's husband, standing at their neighbor's door firing a shotgun. After arresting him, they spoke with Paola, who indicated that she would at times smoke marijuana as a sleep aid and for anxiety. {Paola [also] told officers that John and the neighbor used crack and powdered cocaine together ….} A sweep revealed that the Connellys' home contained drug paraphernalia and several firearms, including firearms owned by Paola. There was no indication that Paola was intoxicated at the time.
Paola was charged with violating: (1) 18 U.S.C. § 922(g)(3) by possessing firearms and ammunition as an unlawful user of a controlled substance, and (2) 18 U.S.C. § 922(d)(3) by providing firearms and ammunition to an unlawful user of a controlled substance. Paola argued in a motion to dismiss, and the District Court ultimately agreed, that §§ 922(g)(3) and 922(d)(3) were facially unconstitutional and that § 922(g)(3) was unconstitutional as applied to her under the Second Amendment.
This appeal asks us to consider whether Paola's Second Amendment rights were infringed, and the answer depends on whether § 922(g)(3) is consistent with our history and tradition of firearms regulation. The short of it is that our history and tradition may support some limits on a presently intoxicated person's right to carry a weapon (and for that reason Paola's facial challenges to §§ 922(g)(3) and 922(d)(3) fail), but they do not support disarming a sober person based solely on past substance usage. Nor, contrary to what the government contends, do restrictions on the mentally ill or more generalized traditions of disarming "dangerous" persons apply to nonviolent, occasional drug users when of sound mind….
[L]aws designed to disarm the severely mentally ill do not justify depriving those of sound mind of their Second Amendment rights. The analogy stands only if someone is so intoxicated as to be in a state comparable to "lunacy." Just as there is no historical justification for disarming citizens of sound mind, there is no historical justification for disarming a sober citizen not presently under an impairing influence….
So the Bruen-style analogical question is this: which is Paola more like: someone whose mental illness is so severe that she presents a danger to herself and others (i.e., someone who would be confined and deprived of firearms under this tradition and history of Second Amendment regulation)? Or a repeat alcohol user (who would not)? Paola falls into the latter camp. While intoxicated, she may be comparable to a severely mentally ill person whom the Founders would disarm. But, while sober, she is like a repeat alcohol user between periods of intoxication, whom the Founders would not disarm….
The government also contends that persons whom Congress deems "dangerous" can have their Second Amendment rights stripped. In doing so, it posits that Paola—a non-violent marijuana user—falls into the category of "dangerous." But our history and tradition of disarming "dangerous" persons does not include non-violent marijuana users like Paola. Indeed, not one piece of historical evidence suggests that, at the time they ratified the Second Amendment, the Founders authorized Congress to disarm anyone it deemed dangerous. Instead, the government presents a collection of different statutes disarming discrete groups of persons throughout history, which suggest an abstract belief that one's right to bear arms could be stripped if he were legitimately dangerous to the public.
The government's examples fall into two groups. First, laws barring political dissidents from owning guns in periods of conflict…. Second, laws that disarmed religious minorities—especially Catholics. [But t]he Founders did not disarm English Loyalists because they were believed to lack self-control; it was because they were viewed as political threats to our nascent nation's integrity. So too with laws disarming religious minorities—the perceived threat was as political as it was religious, if not even more so….
Nevertheless, an undeniable throughline runs through these sources: Founding-era governments took guns away from those perceived to be dangerous. Indeed, Rahimi 2024 [i.e., the Supreme Court's Rahimi decision, rather than the Fifth Circuit's -EV] discusses this history vis-à-vis § 922(g)(8), which affirms the idea "that the government may disarm an individual temporarily after a 'judicial determinatio[n]' that he 'likely would threaten or ha[s] threatened another with a weapon.'"
So we must ask: why were the groups disarmed at the Founding considered to be dangerous and therefore disarmed, and is that "why" "relevantly similar" to § 922(g)(3)? It is not. The government identifies no class of persons at the Founding who were "dangerous" for reasons comparable to marijuana users. Marijuana users are not a class of political traitors, as English Loyalists were perceived to be. Nor are they like Catholics and other religious dissenters who were seen as potential insurrectionists.
And § 922(g)(3) is not limited to those judicially determined to have had a history of violent behavior (or a propensity to engage in same) like those persons discussed in Rahimi 2024—not all members of the set "drug users" are violent. As applied, the government has not shown how Paola's marijuana use predisposes her to armed conflict or that she has a history of drug-related violence.
Read the whole opinion for more.
