Federal Judge Rules Removing Gun Rights for Using Marijuana is Unconstitutional

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US District Judge Patrick Wyrick has just made millions of marijuana users — particularly those in states where cannabis use has been legalized — very happy…at least those in the Tenth District. The federal government lists marijuana as a Schedule 1 controlled substance. If you use it you stand to lose your gun rights. That’s why the ATF’s form 4473 background check form asks about it and now warns those who live in states where it’s been legalized.

Jared Michael Harrison . . .

…had been charged after being arrested by police in Lawton, Oklahoma, in May 2022 following a traffic stop. During a search of his car, police found a loaded revolver as well as marijuana. Harrison told police he had been on his way to work at a medical marijuana dispensary, but that he did not have a state-issued medical-marijuana card.

At the time of he arrest, Harrison was out on bond pending trial for an aggravated assault charge involving a firearm in Texas.

Harrison and another man are alleged to have shot into a crowd at a college party, seriously wounding at least one partygoer. It is not clear from the available records in the Texas case whether any conditions of release were imposed on Harrison other than the location monitoring.

Harrison’s defense employed the Supreme Court’s Bruen ruling in his defense.

His lawyers had argued the portion of federal firearms law focused on drug users or addicts was not consistent with the nation’s historical tradition of firearm regulation, echoing what the U.S. Supreme Court has ruled last year in a case known as New York State Rifle & Pistol Association v. Bruen. That case set new standards for interpreting the Second Amendment.

The prosecution argued that “disarming presumptively risky persons, namely, felons, the mentally ill, and the intoxicated” is in the public interest. Judge Wyrick, however, wasn’t buying what the DOJ was selling.

On Friday Judge Wyrick ruled that the law passed by Congress depriving marijuana users of their Second Amendment rights is unconstitutionally flawed.

It bears repeating that all the United States would have to prove at trial in order to justify depriving Harrison of is right to possess a firearm is that he is a user of marijuana. But the mere use of marijuana carries none of the characteristics that the Nation’s history and tradition of firearms regulation supports. The use of marijuana — which an be bought legally (under state law) at more than 2,000 ordinary store fronts in Oklahoma — is not in and of itself a violent, forceful, or threatening act. It is not a “crime of violence.” Not does it involve “the actual use or threatened use of force.”

That Congress may have passed §922(g)(3), as the United States suggests, with some vague relation to public safety or “the public interest” does not change this conclusion. It is not appropriate for a court to “reflexively defer to a [legislative] label when a fundamental right is at stake.” And the use of marijuana does not become a violent, forceful, or threatening act merely because the legislature says it is. 

He also used Bruen in his conclusion that marijuana use doesn’t make anyone a “dangerous lunatic.”

But the United States’ own conception of the historical tradition demonstrates why §922(g)(3) as applied to Harrison is not analogous to these traditions. Under the United States’ own theory, history and tradition would limit disarmament to dangerous lunatics. And as explained above, the mere use of marijuana does not indicate that someone is in fact dangerous, let alone analogous to a “dangerous lunatic.” There are likely nearly 400,000 Oklahomans who use marijuana under state-law authorization. Lumping all those persons into a category with “dangerous lunatics,” as the United States’ theory requires, is a bridge too far. 

The judge noted that the criminal justice system could have kept Harrison behind bars to ensure he didn’t get his hands on a gun if it concluded that he’s a threat.

None of this is to say that the government cannot play a role in protecting the public from dangerous persons possessing firearms. It can, and it should. For example, if the State of Texas thought that Harrison’s alleged involvement in a shooting demonstrated that Harrison was a danger to the public, it could have demonstrated to a Texas judge—in an individualized proceeding of which Harrison would have been given notice and the opportunity to be heard—that Harrison ought to be jailed while awaiting trial for that shooting. The Constitution, after all, permits pre-trial detention, and such detention would be a highly effective means of furthering the government’s interest in protecting the public from a gun-toting Harrison. But that didn’t happen; Harrison was released pending trial in Texas. And so here we are, with the federal government now arguing that Harrison’s mere status as a user of marijuana justifies stripping him of his fundamental right to possess a firearm. For all the reasons given above, this is not a constitutionally permissible means of disarming Harrison.

Judge Wyrick vacated the indictment against Harrison, dismissing it with prejudice. You can read the full ruling here.

This will probably cause almost as much hysteria and hair-pulling as last week’s Bruen-based decision in the Fifth Circuit ruling that a ban on gun possession by people under a domestic restraining order is unconstitutional (see today’s quote).

In both of these cases, the defendants had prior charges against them for which they could have been kept in jail if the criminal justice system believed them to be threats to society. Neither were. Maybe that’s the real problem society should be dealing with rather than trying to strip individuals of their Second Amendment rights for arbitrary reasons.

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