The government sends a lot of mixed signals when it comes to marijuana consumption. A lot of states have legalized it despite the federal prohibition on pot. DEA officials turn a blind eye to these sales, too, respecting states’ decision to legalize something that is still technically illegal.
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Where we get a problem, though, is when someone wants to use marijuana in accordance with state law but also wants to exercise their right to keep and bear arms.
Federal law still applies and, unfortunately, the feds will actually enforce this law.
Yet can they do so lawfully? Well, according to at least one judge, no, they can’t.
Regularly smoking weed does not necessarily void a person’s Second Amendment rights, according to a new ruling by a federal judge in Texas.
On Monday, US District Judge David Briones dismissed a criminal indictment against an El Paso man caught with multiple bags of marijuana and firearms in his home. He determined that the Government couldn’t prove the man was high at the time of his arrest. Therefore, his prosecution represented an unconstitutional application of the federal law that bans drug users from owning firearms.
“Defendant is part of ‘the people’ whose conduct is covered and protected by the Second Amendment,” Judge Briones wrote in US v. Gil. “Because he is part of ‘the people,’ the Government had the burden to identify a historical analogue similar enough to 18 U.S.C. § 922(g)(3) to show that individuals like Defendant were disarmed at the time of the Founding. The Government failed to meet its burden. Therefore, the Court finds that 18 U.S.C. § 922(g)(3) is unconstitutional as applied to Defendant.”
The decision highlights the continued legal fallout over the federal gun ban for drug users in the circuit that has done more to call it into question than any other. Though the states covered under the Fifth Circuit—Texas, Mississippi, and Louisiana—all align with the Federal Government in prohibiting recreational marijuana use, the appellate court has nevertheless ruled in favor of the gun rights of marijuana users on multiple occasions over the last two years.
Judge Briones, a Bill Clinton appointee seated in the Western District of Texas, leaned on those previous rulings to reach his decision.
“The Fifth Circuit made clear that history and tradition do not support disarming someone solely based on past drug use,” he wrote.
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The fact that this was a Clinton appointee is interesting.
One potential pitfall here is that I can actually see an argument being made that laws against carrying guns while drunk from the founding era could be seen as a parallel to the prohibition of marijuana users owning guns. There are major problems with that comparison, of course–namely that the drunks could still own guns no matter how often they were drunk, for example, while just using marijuana occasionally completely invalidates one’s Second Amendment rights, for example–but I can see the argument being made.
The government failed to make sufficient connection and so this was shot down.
Of course, that doesn’t mean the matter is settled. There’s still a lot to do before that can be the case, potentially up to and including having the matter decided by the Supreme Court.
It could also be solved by the incoming Congress. With pro-gun Republicans having control of both chambers of Congress and the White House, coupled with pro-pot Democrats still being plentiful enough, it should be a slam dunk to get something through putting an end to this prohibition.
I don’t think that’s going to be anyone’s priority, mind you, but it would be nice to see.
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