The Volokh Conspiracy
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Second Amendment Protects Marijuana Users Unless There's Concrete Showing They're Dangerous
From U.S. v. Cooper, decided today by Eighth Circuit Judge David Stras, joined by Judges Steven Grasz and Jonathan Kobes:
In United States v. Veasley (8th Cir. 2024), we concluded that keeping firearms out of the hands of drug users does not "always violate[] the Second Amendment." Now the question is whether it sometimes can. The answer is yes, so we remand for the district court to determine whether it does for LaVance Cooper….
Cooper consented to a bench trial on stipulated facts. One was that he smoked marijuana three to four times a week. Another was that he had done it two days before officers found a Glock 20 pistol in his car during a traffic stop. Based on those facts and a few others, the district court found Cooper guilty of being a drug user in possession of a firearm, see 18 U.S.C. § 922(g)(3), and sentenced him to 37 months in prison….
In every Second Amendment case, the overarching question is whether a limitation on the right to keep and bear arms is "consistent with this Nation's historical tradition of firearm regulation." N.Y. State Rifle & Pistol Ass'n, Inc. v. Bruen (2022). Key to answering that question is identifying "analogue[s]": Founding-era regulations that "impose[d] a comparable burden on the right of armed self-defense" with a "comparabl[e] justifi[cation]." See also United States v. Rahimi (2024) (explaining that the modern regulation "need not be a 'dead ringer' or a 'historical twin'"). If no comparable analogues exist because "disarmament is a [purely] modern solution to a centuries-old problem," or strays too far from the "how and why" of "historical regulations," then the Second Amendment kicks in….
In Veasley, we identified two Founding-era analogues that "make [the drug-user-in-possession statute] constitutional in [certain] applications": "confinement of the mentally ill" and the "criminal prohibition on taking up arms to terrify the people."
Early in this country's history, the "mentally ill and dangerous" ended up in jails, makeshift asylums, and mental hospitals "with straitjackets and chains." Confinement came with a "loss of liberties," including disarmament, "to preserve the peace of the community." "Those who posed no danger," by contrast, "stayed at home with their families," with "their civil liberties … intact."
The question is whether § 922(g)(3) is "relevantly similar" to this Founding- era analogue. It is, but not for everyone. The "behavioral effects" of mental illness and drug use can "overlap," but only the subset of the mentally ill who were dangerous faced confinement and the loss of arms. It follows that, for disarmament of drug users and addicts to be comparably "justifi[ed]," it must be limited to those "who pose a danger to others." The analogy is complete, in other words, for someone whose "regular use[] of … PCP … induce[s] violence," but not for a "frail and elderly grandmother" who "uses marijuana for a chronic medical condition." The latter would regulate "arms-bearing … to an extent beyond what was done at the [F]ounding."
Much the same goes for Veasley's other analogue, Terror of the People. Initially a common-law crime and later codified in some states, these going-armed laws required more than "mere possession" of a weapon. As "a mechanism for punishing those who had menaced others with firearms," an essential element was "terrorizing behavior … accompany[ing] the possession." Punishment included imprisonment and "forfeiture of the arms" used in the crime. Sometimes, when aggression was foreseeable, magistrates ordered individuals to post surety bonds to "prevent[] violence before it occurred," but only after providing "significant procedural protections."
The lesson to draw is that this analogy only works "for some drug users." When "a court has found that the defendant 'represents a credible threat,'" a ban on firearm possession "fits neatly within the tradition." Rahimi. And so does one applied to drug users who engage in "terrifying conduct." For others, like the hypothetical grandmother, threatening violence or causing terror is "exceedingly unlikely," so the justification for disarmament is not comparable.
These two analogues also frame the relevant questions for resolving Cooper's as-applied challenge. Did using marijuana make Cooper act like someone who is "both mentally ill and dangerous"? Did he "induce terror" or "pose a credible threat to the physical safety of others" with a firearm? Unless one of the answers is yes—or the government identifies a new analogue we missed—prosecuting him under § 922(g)(3) would be "[in]consistent with this Nation's historical tradition of firearm regulation….
We recognize that not every group targeted by a disarmament law is the same. Consider felons. In United States v. Jackson, a panel of this court surveyed a different set of Founding-era laws and concluded that they supported a categorical ban. Supreme Court dicta singling out felon-dispossession laws as "presumptively" constitutional provided additional support.
We have "no such 'assurances,'" however, about drug users and addicts. Nor has our review of the historical tradition surrounding them, to the extent one exists, turned up any bright- line rules. Sometimes disarming drug users and addicts will line up with the case-by-case historical tradition, but other times it will not. The district court's task on remand is to figure out which side of the Second Amendment line Cooper's case falls on….
Although both sides invite us to resolve Cooper's as-applied challenge, the district court is in the best position to take the first crack at it. The factual record is thin, given that the case proceeded to a bench trial on stipulated facts, so the parties may want to supplement the record with other evidence. In the meantime, we will tie up a loose end to save everyone time on remand.
The government suggests in its briefing that Cooper is too dangerous to have a gun because he "possessed [one] for protection after [a] recent shooting at his residence." We disagree for two reasons. First, the parties only stipulated that "officers were dispatched to [his] residence … in reference to an individual who had been shot," not a shooting that happened there. And second, "individual self-defense is 'the central component' of the Second Amendment right," not an exception to it. {Marijuana use by itself is not an exception either, even if possessing it breaks federal law.}
