Gun Ban for Cannabis Users Unconstitutional: U.S. Judge
A U.S. judge has ruled a gun ban for cannabis users unconstitutional. U.S. District Judge Patrick Wyrick made the ruling on February 3rd, 2023.
It began when Lawton, Oklahoma, police arrested Jared Michael Harrison in May 2022 during a routine traffic stop. They searched his car and found a loaded revolver and cannabis. Harrison worked in the state’s legal, medical cannabis industry but lacked proper paperwork.
Over the next eight months, Harrison’s lawyers would argue that the government violated their client’s Second Amendment rights.
And indeed, if you’ve ever filled out ATF Form 4473, you’ve come across question 21e.
“Are you an unlawful user of, addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?”
Even if cannabis is legal in your state, you’re still prohibited from owning a firearm. Answering “no” could see you charged for lying under oath.
Interpreting the Second Amendment
Judge Wyrick, appointed by Donald Trump in 2018, sided with Harrison’s right to bear arms. He cited a U.S. Supreme Court ruling that dealt with a Second Amendment interpretation.
In New York State Rifle & Pistol Association v Bruen, the Supreme Court found that New York’s restrictions on concealed carry violated the Fourteenth Amendment by stopping “law-abiding citizens with ordinary self-defense needs.”
New York’s gun owners brought the challenge forward. They felt that handing out gun licenses only to individuals with “proper cause” violated the Constitution.
The Supreme Court agreed. Justice Clarence Thomas wrote that the Second Amendment was not some “second-class right,” that doesn’t “require individuals to demonstrate to government officers some special need.”
Referencing this case, Judge Wyrick ruled that stripping cannabis users like Harrison of their Second Amendment gun rights was unlawful.
“For all the reasons given above, this is not a constitutionally permissible means of disarming Harrison,” Judge Wyrick said.”
Most expect the U.S. Department of Justice to appeal the ruling that makes gun bans for cannabis users unconstitutional.
Gun Ban for Cannabis Users Unconstitutional Because Prohibition is Unconstitutional
Although the Second Amendment says “the right of the people to keep and bear Arms, shall not be infringed,” the Gun Control Act of 1968 prohibits individuals who are “unlawful users of or addicted to any controlled substance” from owning or possessing firearms.
Yet, the U.S. Constitution says nothing about “controlled substances.” The fact is – cannabis prohibition is unconstitutional. The Fifth and Fourteenth Amendments expressly protect the rights to life, liberty, and property and guarantee equal protection under the law.
However, courts have generally upheld the constitutionality of federal and state laws that prohibit the use, possession, and sale of cannabis. Just as they’ve upheld restrictions on free speech despite the Constitution being clear as day.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
It doesn’t get any clearer than that. So how can politicians and judges routinely violate the unequivocal terms in the U.S. Constitution?
Easy, according to law professor John Hasnas. There is a difference between “law” and “order.”
The Difference Between “Law” and “Order”
John Hasnas argues that there are no neutral interpretations of legal reasoning. Meaning that all legal reasoning is inherently value-laden and reflects the personal and political biases of those interpreting the law.
John Hasnas writes that all legal concepts, including the idea of neutrality, are not objectively defined but shaped by cultural and political forces. This means that legal reasoning can never be neutral and that the values and beliefs of the interpreter always influence any interpretation of the law.
John Hasnas writes,
The fact is that there is no such thing as a government of law and not people. The law is an amalgam of contradictory rules and counter-rules expressed in inherently vague language that can yield a legitimate legal argument for any desired conclusion. For this reason, as long as the law remains a state monopoly, it will always reflect the political ideology of those invested with decision-making power.
For these reasons, John Hasnas argues for ending the state monopoly on law. Continuing,
Were the distinction between order and law well understood, the question of whether a state monopoly of law is the best way to ensure an orderly society could be intelligently discussed. But this is precisely the question that the state does not wish to see raised. By collapsing the concept of order into that of law, the state can ensure that it is not, for it will have effectively eliminated the idea of a non-state generated order from the public mind.
U.S. Constitution Litmus Test
As mentioned, most expect the U.S. Department of Justice to appeal the ruling. And why wouldn’t they?
In the heyday of the Catholic Church, the Church ignored Jesus’ basic teachings. This eventually led to the Protestant Reformation.
As for the U.S. Constitution? Many still swear by it. If only the current government could “return” to its constitutional limitations.
But this ignores the history where even the first generation of post-revolutionary American politicians couldn’t be bothered by its limits.
There’s also a fundamental problem with the state’s monopoly on law and the ambiguity of language. Consider, in times of war, should the U.S. government prohibit and punish citizens who may reveal military secrets to the enemy?
If your answer is yes, you’ve interpreted the “Shall Make No Law” in the First Amendment to mean “sometimes, in times of war.”
Okay, what about reasonable objections to free speech? Like shouting “fire” in a crowded movie theatre? Or selling a strain of cannabis flower with unsubstantiated (but not fraudulent) claims?
Should Congress pass laws to limit this kind of speech? If so, you’ve again interpreted the “no” in the First Amendment to mean “some.”
Congress may pass a law prohibiting TikTok. Sounds great, right? TikTok is a Chinese spyware app that the American public shouldn’t use.
Yet, suppose you disagree with that statement. If you think Congress shouldn’t pass a law banning TikTok, you’ve chosen to interpret the words “speech” and “press” to refer to phone apps.
Gun ban for cannabis users? Your opinion will depend on how dangerous you think guns and cannabis are.
Gun Ban for Cannabis Users Unconstitutional
Having a gun ban for cannabis users ruled unconstitutional will likely be appealed. There’s been a concerted effort by elements in the American system to disarm Americans since at least 1934. Controlling firearms was all part of President Roosevelt’s “New Deal for Crime.”
Like everything else from that era, it’s time to repeal.
Americans have a right to bear arms, regardless of whether they consume cannabis medicinally or recreationally. Or whether their consumption rate is occasional or daily.