Another Fed Judge Rejects DOJ's Argument
That Cannabis Users Have No 2A Rights

By Jacob Sullum. Apr 11, 2023

A federal judge in Texas recently agreed with a federal judge in Oklahoma that the national ban on gun possession by cannabis consumers violates the Second Amendment. Kathleen Cardone, a judge on the U.S. District Court for the Western District of Texas, also concluded that the federal ban on transferring firearms to an "unlawful user" of a "controlled substance," first imposed by the Gun Control Act of 1968, is unconstitutional.

The case involves Paola Connelly, who was charged with illegal possession of firearms under 18 USC 922(g)(3) after El Paso police found marijuana and guns in her home while responding to a domestic disturbance in December 2021. Connelly, who said she used marijuana "to sleep at night and to help her with anxiety," also was charged with violating 18 USC 922(d)(3) by transferring guns to her husband, a cocaine and psilocybin user. Both gun offenses are punishable by up to 15 years in prison.

As a preliminary matter, Cardone held that Connelly's Second Amendment claims were not precluded by prior decisions in which the U.S. Court of Appeals for the 5th Circuit, which includes Texas, upheld Section 922(g)(3). Those decisions, she noted, preceded the Supreme Court's June 2022 ruling in New York State Rifle & Pistol Association v. Bruen, which said gun control laws must be "consistent with the Nation's historical tradition of firearm regulation."

Last February in United States v. Rahimi, the 5th Circuit concluded that Bruen required it to reconsider decisions upholding the federal ban on gun possession by people subject to domestic violence restraining orders. By the same logic, Cardone says in an order published last week, the 5th Circuit's precedents regarding Section 922(g)(3) are no longer binding.

As it has in previous cases involving the same law, the Biden administration argued that the gun ban for marijuana users meets the Bruen test because it is "relevantly similar" to colonial and state laws forbidding people to publicly use or carry guns while intoxicated. Like U.S. District Judge Patrick Wyrick, who deemed that ban unconstitutional in an Oklahoma case last February, Cardone was unpersuaded by that analogy. .....