DOJ: Cannabis Users Are Too Irresponsible to Own Guns

When the Supreme Court rejected a challenge to the federal law that disarms people who are subject to domestic violence restraining orders last month, its ruling was narrow. “Our tradition of firearm regulation allows the Government to disarm individuals who present a credible threat to the physical safety of others,” Chief Justice John Roberts wrote for the majority in United States v. Rahimi, which overturned a 2023 decision by the U.S. Court of Appeals for the 5th Circuit. The justices left for another day the question of whether the Second Amendment allows the government to disarm people without evidence of such a threat, based merely on the existence of a restraining order that “explicitly prohibits the use, attempted use, or threatened use of physical force”—one option under 18 USC 922(g)(8), the statute at the center of the case.

At the same time, the Court provided reason to think it might be more skeptical of other restrictions on gun possession by explicitly rejecting the government’s claim that only “responsible” citizens have Second Amendment rights. This month, the justices nevertheless vacated a 2023 decision in which the 5th Circuit overturned a marijuana user’s conviction for illegal gun possession, remanding the case for further consideration in light of Rahimi. That move, combined with a passing comment in Rahimi, suggests that the Court might be inclined to uphold the federal ban on gun possession by cannabis consumers and other illegal drug users.

The 5th Circuit case, United States v. Daniels, involves a Mississippi man who was caught with guns and the remains of a few joints during a routine traffic stop in 2022. Patrick Darnell Daniels Jr. was convicted of violating 18 USC 922(g)(3), which makes it a felony for an “unlawful user” of a “controlled substance” to receive or possess a firearm, and sentenced to nearly four years in prison. The 5th Circuit deemed his prosecution unconstitutional, rejecting the government’s argument that it was “consistent with this Nation’s historical tradition of firearm regulation”—the test that the Supreme Court established in the 2022 case New York State Rifle & Pistol Association v. Bruen.

In defending Section 922(g)(3), the Justice Department has argued, among other things, that cannabis consumers are ipso facto “irresponsible,” which it said means they are not part of “the people” whose right to “keep and bear arms” is guaranteed by the Second Amendment. And even if they are part of “the people,” the government said, their irresponsibility places them in a category of individuals who historically were denied gun rights.

Solicitor General Elizabeth Prelogar pressed the same argument in Rahimi, which involved a defendant with an extensive history of violence. “This case focuses on the ‘not responsible citizens’ principle,” Prelogar said during oral arguments in that case last November. “In this context, we think that history and tradition show that it applies to those whose possession of firearms would pose an unusual danger, beyond the ordinary citizen, with respect to harm to themselves or harm to others.”

Roberts was openly skeptical of that argument. “Responsibility is a very broad concept,” he noted, suggesting it could encompass someone who fails to comply with recycling requirements or sets a “bad example” by “yelling at a basketball game in a particular way.” He reiterated that “the problem with responsibility is that it’s extremely broad,” and “what seems like…irresponsibility to some people might seem like…not a big deal to others.”

Robert (sic) expressed the same concern in his Rahimi opinion. “In holding that Section 922(g)(8) is constitutional as applied to Rahimi, we reject the Government’s contention that Rahimi may be disarmed simply because he is not ‘responsible,'” the chief justice wrote. “‘Responsible’ is a vague term. It is unclear what such a rule would entail. Nor does such a line derive from our case law.”

— Jacob Sullum in The DOJ Claims Medical Marijuana Patients Who Own Guns ‘Endanger the Public in Multiple Ways’