Appeals Court Revives Challenge to Ban on Guns for Medical Marijuana Users

The Eleventh Circuit Court of Appeals has overturned a district court judge’s decision throwing out a challenge to the federal laws barring “unlawful” users of drugs from purchasing and possessing guns that was originally brought by then-Florida Agriculture Commissioner Nikki Fried and several individual plaintiffs. 

The plaintiffs filed an as-applied challenge to Section 922(g)(3) and Section 922(d)(3), which meant they weren’t arguing that the statutes were unconstitutional in every cricumstance. Instead, they maintained that the laws are unconstitutional as it applied to them; medical marijuana users and a gun owner who wants to participate in the state’s medical marijuana system. 

Though the district court concluded that the federal statute was “consistent with this Nation’s historical tradition of firearms regulation and therefore did not violate the Second Amendment,” the three-judge panel on the appellate court concluded that:

… when viewed in the light most favorable to the plaintiffs, the allegations in the operative complaint do not lead to the inference that the plaintiffs are comparatively similar to either felons or dangerous individuals—the two historical analogues the Federal Government offers in its attempt to meet its burden.

The district court assumed that medical marijuana users (or at least the named plaintiffs) are part of “the people” who possess the right to keep and bear arms, but it concluded that laws banning all “unlawful” users of drugs are part of the national tradition of keeping “dangerous” people away from legal gun ownership. 

The problem, as the Eleventh Circuit panel pointed out, is that there’s no evidence that these particular plaintiffs are, in fact, dangerous. 

This illegal use of marijuana, the Federal Government asserts, makes Cooper and Hansell akin to felons because through their use they have shown they are not “law-abiding, responsible citizens,” and felons have historically been excluded from the right to bear arms. The district court declined to decide whether Cooper’s and Hansell’s use of medical marijuana excluded them from “the people” who fall within the Second Amendment’s protection. Instead, the district court assumed that “the people” includes Cooper and Hansell. We, however, reject the Federal Government’s argument for two reasons. First, while there is a history and tradition in this Nation of disarming convicted felons, nothing in the FAC [First Amended Complaint] indicates that Cooper and Hansell have ever been convicted of any crime, let alone a felony. Nor are there any allegations that they are engaging in felonious conduct. The only crime that the FAC plausibly alleges Cooper and Hansell have committed at this stage is simple possession of a controlled substance, which is a misdemeanor. The parties do not cite, and we are not aware of, any authority for the proposition that misdemeanants are not among the people who enjoy the right to bear arms as protected by the Second Amendment. We decline to hold so now.

Under Merrick Garland’s watch, the DOJ took the position that any violation of the law, no matter how minor, meant that person wasn’t a “law-abiding citizen” and therefore had no Second Amendment rights. Various courts took issue with that position, correctly noting that there was no limiting principle involved, and people who simply jaywalked or received a speeding ticket could be rendered a prohibited person if the DOJ’s stance was taken to its illogical end. 

Second, following Rahimi, we reject the Federal Government’s argument that Cooper and Hansell are not among “the people” because they are not “law-abiding” or “responsible.” In Rahimi, the Supreme Court explicitly “reject[ed] the Government’s contention that Rahimi may be disarmed simply because he [was] not ‘responsible.’” In doing so, the Court explained that “‘[r]esponsible’ is a vague term”and that it was “unclear what such a rule would entail.” Rahimi clarified that Heller’s and Bruen’s use of the term “responsible” was simply “to describe the class of ordinary citizens who undoubtedly enjoy the Second Amendment right” and “said nothing about the status of citizens who were not ‘responsible.’”

So the plaintiffs are part of “the people” who possess a right to keep and bear arms. But what about the district court’s opinion that unlawful drug use, in any form, is a disqualifying factor for exercising our Second Amendment rights?

The Federal Government has not pointed to any historical tradition of disarming those engaged in misdemeanant conduct. Because 18U.S.C. § 922(g)(3) applied to Cooper and Hansell disarms people who are not felons, the statute “regulates arms-bearing . . . to an extent beyond what was done at the founding,” which demonstrates that 18 U.S.C. § 922(g)(3) is “not . . . compatible with the [Second Amendment] right” in this case. 

… The Federal Government’s second analogue is that the Nation has a long history and tradition of disarming individuals itf airly deems as dangerous, including the mentally ill, drug addicts, alcoholics, and the intoxicated. It argues that Rahimi makes clear that Congress may disarm those who pose a real danger to the public and that, as unlawful users of a controlled substance, medical marijuana users fit firmly within this category of dangerous individuals because they may mishandle firearms, commit crimes to obtain drugs, or even engage in violent crime aspart of the illegal drug trade. But the Federal Government has again failed to meet its burden at this point in the litigation to show that its “dangerousness” analogue imposes a comparable burden on the Second Amendment right—the same “how”—as 18 U.S.C.§ 922(g)(3) applied to Cooper and Hansell: based on the allegations in the FAC, Cooper and Hansell cannot fairly be labeled as dangerous people solely due to their medicinal marijuana use.

The panel’s decision doesn’t mean that the plaintiffs are guaranteed to prevail in their arguments, only that they’ll now get a second chance to plead their case in federal court. The ruling also means that the DOJ will have to come up with new arguments to satisfy the Eleventh Circuit, because the ones they’ve offered to date don’t pass muster with the panel. 

The Supreme Court may very well address the constitutionality of 922(g)(3) before this particular case gets back to the appellate court, though. There are almost a half-dozen cases awaiting SCOTUS’s return from summer recess that deal with the legality of the statute, both facially and as it applies to individual plaintiffs. 

The Trump administration has taken the position that the statute should be upheld, though Solicitor General D. John Sauer mischaracterized the scope of 922(g)(3) in his cert petition in U.S. v. Hemani by claiming the law only effects “habitual” users of unlawful drugs, which he contends makes the statute a “limited, inherently temporary restriction” on the right to keep and bear arms. The statute itself, however, doesn’t contain the word “habitual”.  

Even if that’s how the Trump administration interprets the law, we’ve already seen how an anti-gun administration can interpret it so broadly that anyone who’s recently smoked a joint or eaten an edible, even with a medical marijuana card, is an “unlawful” user who’s prohibited from possessing a firearm. 

If SCOTUS decides to address this issue next term, I’m skeptical that there’s a majority willing to strike down 922(g)(3) entirely. But with 38 states adopting medical marijuana laws, and nearly half the country decriminalizing or legalizing marijuana for recreational use, I wouldn’t be surprised to see a decision that would broadly allow those folks access to their Second Amendment rights while keeping the statute itself in place. 

Editor’s Note: We’re getting new court opinions in 2A cases almost every day, and most mainstream news outlets aren’t bothering to cover them. 

Help support our in-depth analysis by becoming a Bearing Arms VIP, and use promo code FIGHT to take 60% off your membership.