Logan Elia, Rose Law Group partner and litigation attorney, comments on: Federal judge rules ban on gun possession by cannabis consumers is unconstitutional

By Jacob Sullum | Reason

In a ruling issued on Friday, a federal judge in Oklahoma said prohibiting marijuana users from owning guns violates the Second Amendment. That restriction, U.S. District Judge Patrick Wyrick concluded in United States v. Harrison, is not “consistent with this Nation’s historical tradition of firearm regulation”—the constitutional test established by the Supreme Court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen.

The Oklahoma case involves Jared Michael Harrison, a marijuana dispensary employee who was pulled over last May on his way to work for failing to stop at a red light. Police found marijuana and a loaded revolver in his car. Although marijuana is legal for medical use in Oklahoma, Harrison was not an authorized patient, so he was charged with illegal possession of marijuana and drug paraphernalia under state law. He also was indicted for violating 18 USC 922(g)(3), a federal law that makes it a felony, punishable by up to 15 years in prison, for an “unlawful user” of a “controlled substance” to receive or possess a firearm.

That rule, which was first imposed by the Gun Control Act of 1968, applies to all cannabis consumers, even in states that have legalized marijuana for medical or recreational use. Harrison challenged the federal indictment, arguing that it was inconsistent with the Second Amendment, which protects “the right of the people to keep and bear arms.”

The government argued that Harrison’s marijuana use excluded him from “the people,” a category it said was limited to “law-abiding citizens.” But in the landmark 2008 case District of Columbia v. Heller, Wyrick notes, the Supreme Court rejected that narrow reading of “the people.” The Court said the phrase “unambiguously refers to all members of the political community, not an unspecified subset.”

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“Marijuana was prohibited in 1937 based on lies. Harry Anslinger, the main proponent of marijuana prohibition, claimed marijuana caused bloodlust and advocated for prohibition on overtly racist grounds. In 1971, President Nixon declared the War on Drugs, primarily based on misinformation. In 1986, continuing the War on Drugs, President Regan signed a law that prohibited the possession of a firearm by anyone who “is an unlawful user of or addicted to any controlled substance.” Educated by the recent Supreme Court decision in New York State Rifle & Pistol Association v. Bruen, judges are finally awakening to the fact that Regan’s law, which was supported by the NRA at the time, is an unconstitutional infringement on the Second Amendment’s unqualified command that the right of the people to keep and bear arms shall not be infringed. Shockingly, the government argues today that it is entitled to prohibit marijuana users from possessing firearms because they are not “law abiding” and therefore not part of the “the people.” This totalitarian rhetoric echoes the racist lies that have always underpinned the War on Drugs. It is wonderful to see judges rejecting it.”

-Logan Elia, Rose Law Group Partner

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