Did the United States Supreme Court restore Second Amendment rights to Cannabis Consumers?

Did the Supreme Court just restore Second Amendment rights to cannabis consumers?


At least one federal judge in Oklahoma said “yes”


In a triumph for supporters of the Second Amendment and the judicial philosophy of “originalism,” the United States Supreme Court last summer handed down a landmark decision in New York Rifle and Pistol Ass’n v. Bruen.  In a 6 – 3 decision, Justice Thomas appears to have upended federal and state authority to regulate firearms.  Since Bruen there has been nationwide litigation in federal courts on behalf of defendants indicted for violating various firearms related crimes such as receiving a firearm while under indictment, possessing a firearm with an obliterated serial number, possessing a firearm while subject to a protection from abuse order and, most recently, possession of a firearm by an unlawful user of a controlled substance.


So what is Bruen all about and how has it opened the floodgates to Constitutional challenges of firearms regulations?  In Bruen the plaintiffs filed a lawsuit challenging a New York law that made it difficult to obtain a concealed carry permit.  In ruling for the plaintiffs not only did Justice Thomas find the New York statute unconstitutional, he embraced a test for Second Amendment regulations that has potentially invalidated ALL firearms’ regulations in the 20thCentury.  Justice Thomas said that any regulations or laws that work to infringe on a person’s Second Amendment rights must be consistent with the “Nation’s historical tradition of firearm regulation.” Is there a “historical analogue” or a “distinctly similar” regulation, law or restriction in effect in the late 18th Century which the Framers would have been familiar with or aware of when ratifying the Bill of Rights.


The Supreme Court in the 1960s could reasonably be described as an activist Court.  It expanded Constitutional protections for those charged with crimes, including the right to remain silent and the right to effective assistance of counsel.  But what galvanized conservative judicial and constitutional scholars was the creation of the “Right to Privacy” in Griswold v. Connecticut and then Roe v. Wade.  The Court reasoned that the Bill of Rights created an umbrella of privacy that protected citizens from Governmental overreach.  Originalists decried these decisions, accurately noting that the Bill of Rights contained no such right and that the Court had strayed too far from the Framer’s intent.  Their view was vindicated in Dobbs v. Jackson Women’s Health Organization which overturned the Right to Privacy, and Bruen which appears to have significantly restricted the ability of the Government to impose firearms related restrictions.


Bruen motions are being litigated across the nation, primarily in Federal courts by federal defenders with clients who have been indicted for violating various provisions of Title 18, section 922.  Federal courts have found that many §922 provisions violate Bruen such as receipt of a firearm by one under indictment; possession of a firearm with an obliterated serial number, possession of a firearm by one subject to a protection from abuse order and, in the case of United States v. Harrison, possession of a firearm by an unlawful user of a controlled substance. 


The Harrison decision was a decision made by a District Court in Oklahoma, so its scope at the moment is limited to that judicial district.  The Court echoed the holding of the Fifth Circuit in United States v. Rahimi wherein the Fifth Circuit held that the Second Amendment applied to “the people” regardless of whether the individual, here Mr. Rahimi, was a “law abiding” or “virtuous” citizen.  Mr. Rahimi was far from a law abiding citizen, having been involved in multiple shooting incidents.  When it was discovered that Mr. Rahimi was subject to a protection from abuse order he was indicted under federal law.  Having cleared the way by finding that Mr. Rahimi was part of “the people” protected by the Second Amendment, the Fifth Circuit applied the Bruen test of asking the question of whether prohibiting those under a protection abuse order was consistent with the Nation’s historical tradition of firearms regulation.  Was there a historical analogue or a distinctly similar regulation or prohibition in effect in the late 18th Century.  It found that domestic violence simply was not a crime in Colonial America so the Framers could not possibly have intended that a man who beat his wife be denied his right to possess a firearm. 


The Harrison Court followed suit.  It, too, rejected any Bruen “first step” that imposed the prerequisite than the citizen be law abiding or virtuous before asking whether the regulation or prohibition at issue was rooted in the Nation’s traditional history of firearms regulation.   Was there a “historical analogue” or a “distinctly similar” law in effect in the late 18th Century?  It was not until 1968 that marijuana users were federally prohibited from possessing firearms.  This ban was applied to all controlled substances users in 1986 – just shy of 200 years after the ratification of the Bill of Rights.  The Court noted that while changing societal norms and concerns made it impossible to identify a “historical twin” the Government must nonetheless:


[S]till identify a historical tradition of laws that are sufficiently analogous, and that turns on whether the laws “impose(d) a comparable burden on the right of armed self-defense” and were “comparably justified.”  Because “(c)onstitutional rights are enshrined with the scope they were understood to have when the people adopted them,” historical analogues in existence near the time the Second Amendment was adopted in 1791 are of primary relevance.


The Government argued that there was a historical tradition in some states of prohibiting intoxicated persons from possessing firearms.  The Harrison Court rejected the Government’s argument this noting that said laws were intended to prohibit the possession of firearms by an actually intoxicated person in public places.  It found that those laws were intended to prevent the waste of gunpowder by intoxicated celebrants at weddings and festivals and which would inhibit the community from detecting an attack by Native Americans.   Said laws, it found had nothing to do with possessing a firearm in one’s home for self-defense, which the Supreme Court previously held in Heller v. District of Columbia was enshrined in the Second Amendment.  It said:


It is a complete deprivation of the right to possess a firearm for self-defense, turning entirely on the fact that an individual is a user of marijuana.  Section 922(g)(3)’s “burden on the right of armed self-defense” is thus not “comparable” to the  . . . historical intoxication laws. 


The Harrison Court went on to explore whether authorities in Colonial America stripped firearms rights from “felons.” For the purposes of this article, however, that analysis will await a discussion of felon not to possess laws under state and federal criminal codes.


So what does Harrison mean for medical cannabis patients and adult us cannabis consumers here in Pennsylvania?  At the moment nothing.  As noted above, it’s scope is limited to the judicial district in Oklahoma in which Mr. Harrison was indicted.  Here in Pennsylvania merely being a user of a controlled substance does not deprive one of Second Amendment rights.  Federal law, however, does.  And federal law is specifically referenced in Pennsylvania’s concealed carry statute which asked “are you otherwise prohibited under federal law from possessing a firearm” when applying for a concealed carry permit.  Pennsylvania also utilizes ATF Form 4473 for background checks when buying or transferring a firearm via a federally licensed firearms dealer.  The form makes it clear that federal law does not recognize any state legalization regulations, medical or adult use.  Thus, §922(g)(3) directly infringes on the Second Amendment rights of a Pennsylvania medical or adult use consumer.


The Third Circuit Court of Appeals has taken a different approach to Bruen.  It, and other federal courts, have imposed a Bruen “first step” of demonstrating that the citizen must be law abiding or virtuous before availing themselves of the analysis required by Bruen.  In Range v. Attorney General it reasoned that the language used by the Court in Bruen necessarily limited the Second Amendment to citizens who have not broken the law.  It relies on Colonial “loyalty oaths” for its conclusion that only law abiding citizens are entitled to Second Amendment protections.  In Colonial Pennsylvania, for example, one was required to pledge loyalty to the sovereign.  Refusing to do so meant that one could be an insurrectionist or of a rebellious nature and thus could not be trusted with arms.  Quakers who refused to swear an oath to serve in the militia were stripped of their firearms.  Native Americans and slaves were also prohibited.  The Third Circuit panel reasoned that the type of person who refused to swear an oath of loyalty to the sovereign was the type of person who would commit crimes.  Thus, the Framers would have understood the Second Amendment as applying not to “the people” but only to “the virtuous, law abiding people.”  Range is pending review by the entire Third Circuit.


Well, what happens next?  Assuming, arguendo that Range imposes the law abiding or virtuous citizen pre-requisite it stands in direct conflict with the Fifth Circuit Court of Appeals.  United States Supreme Court review – certiorari – is appropriate when there is a clear split between the Circuit Courts of Appeal.  The Supreme Court will have to review the scope of Bruen.  Interestingly, Justice Kavanaugh, in a concurring opinion joined by Chief Justice Roberts, seemed to focus not on Justice Thomas’ historical analogue requirement but on the overall history of firearms regulation as it developed in the decades and centuries since the Bill of Rights was ratified as discussed in Heller.  Does Justice Kavanaugh provide a Bruen off-ramp that Chief Justice Roberts and the three dissenting Justices, Sotomayor, Kagan and Brown Jackson, could join to blunt the impact of Justice Thomas’ sweeping language?


Stay tuned, because this is far from settled law.


Patrick K. Nightingale, Esq.