Where the Line Is Drawn on Guns and Marijuana Useage

I don’t think people should habitually smoke marijuana as a general thing, and not just because my neighbors stink up the entire neighborhood when they do it.

It’s because, despite propaganda efforts to make it look like pot is the cure for anything and everything, the truth is that there are some serious potential downsides that people need to consider. Even if it were 100 percent legal, there would be reasons to be careful of it, much like how people should be cautious regarding alcohol.

But should people lose their right to keep and bear arms if they opt to consume marijuana, especially if they’re complying with state law?

The truth is that on pot, the feds are talking out of both sides of their mouths. They do nothing to stop the sale of marijuana in states that have legalized it despite the drug still being illegal at the federal level, yet they’ll crack down hard on anyone they learn who is using it while in possession of a firearm.

This is a matter that has turned up in court, including a recent Fifth Circuit decision.

Talking about the case over at Reason, Jacob Sullum notes:

“Because the jury did not necessarily find that Daniels was presently or even recently engaged in unlawful drug use,” Judge Jerry E. Smith wrote in the majority opinion, “we reverse his conviction again and remand.” In a concurring opinion, Judge Stephen A. Higginson agreed with that result but emphasized that neither decision means prosecutions under Section 922(g)(3) are always unconstitutional.

In Connelly, the government “argued that Founding-era restrictions on the Second Amendment rights of mentally ill persons were ‘relevantly similar'” to Section 922(g)(3) “as applied to unlawful users of controlled substances,” Smith notes. “We rejected the government’s position because ‘institutionalizing those so mentally ill that they present a danger to themselves or others does not give clear guidance about which lesser impairments are serious enough to warrant constitutional deprivations.’ Further, ‘laws 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.'”

Under Bruen, the 5th Circuit said in Connelly, the question was whether the defendant was more like “someone whose mental illness is so severe that she presents a danger to herself and others” or more like “a repeat alcohol user,” who is not necessarily impaired when she handles a gun. “We thought the defendant in Connelly fell into the latter camp because, at least ‘while sober, she is like a repeat alcohol user between periods of intoxication, whom the Founders would not disarm.'” But the court added that the government “might succeed if it were able to demonstrate that [Connelly’s] drug use was so regular and heavy that it rendered her continually impaired.”

Now, this is an interesting discussion here, particularly in this last paragraph, because it shows us a line that the courts have to determine.

If they’re using “drug use” as an indicator of mental health, then the laws against owning a firearm while using a controlled substance is perfectly acceptable under Bruen.

But I’m going to contend that it’s no such thing.

Well, it may be, but not to the degree where it warrants disarming someone entirely. After all, mental illnesses come in a variety of different types, including some relatively mild issues that no one would think warrant the denial of rights. Why? Because we don’t hospitalize people involuntarily simply because they smoke pot. 

Instead, the comparison to a habitual drinker is a far more apt comparison, just on the surface alone. Both involve consuming mind-altering substances and how people in such an altered state may represent a danger to the public if armed, but represent no risk at all when not under the influence of that substance.

In other words, when someone who uses pot isn’t under the influence, they’re not different than anyone else.

What that translates to is that, at least with regard to marijuana use, those who own guns can and should be free from prosecution unless they do something stupid.

That’s the line in the sand, and I hope the courts finally get around to making that clear, particularly to places that want marijuana dispensaries on every corner but want to crack down on any gun owner who might want to consume it.