OK: Ban on Gun Possession for Marijana Users Unconstitutional under Second Amendment

On May 20, 2022, the defendant, Jared Michael Harrison, was pulled over by the Lawton Policed department for an alleged traffic violation. The officer smelled marijuana. Officers searched the car and found some marijuana and a pistol. Harrison was on bond from Texas, and was wearing an ankle monitor. 

Harrison was arrested and is awaiting trial. There are pending state charges. On August 17, 2022, a federal grand jury returned an indictment for possessing a firearm with knowledge he was an unlawful user of marijuana, in violation of Statute 18 U.S.C. § 922(g)(3).

Harrison argued, among other things, the charge violated the Second Amendment under the Supreme Court Bruen decision.  The United States District Court for the Western District of Oklahoma, Judge Patrick R. Wyrick presiding, heard the case.  The court is in the jurisdiction of the Tenth Circuit Court of Appeals.

The Court found the prohibition on the possession of firearms, as an unlawful user of marijuana, was unconstitutional, because there is no historical tradition of removing the right to keep and bear arms from people who use intoxicating substances. Here is a summation of the Court order. From the order, p. 1:

Before the Court is Defendant Jared Michael Harrison’s Motion to Dismiss the Indictment (Dkt. 17), which argues that the statute he is charged with violating, 18 U.S.C. § 922(g)(3), is unconstitutionally vague, in violation of the Due Process Clause, and unconstitutionally infringes upon his fundamental right to possess a firearm, in violation of the Second Amendment. For the reasons given below, the motion is GRANTED.

Here is the exact wording of the statute in question.  From Law.cornell.edu, 18 U.S.C. § 922(g)(3):

 (g) It shall be unlawful for any person—

(3) who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802));

to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

The court noted the ban on possession is fairly recent, and was not enacted until 1986. From the opinion p. 5: 

Section 922(g)(3) does not have deep roots; it wasn’t enacted by Congress until the Gun Control Act of 1968. The statute initially prohibited any individual who was “an unlawful user of or addicted to marihuana or any depressant or stimulant drug . . . or narcotic drug” from receiving a firearm, but it was amended in 1986 to broadly prohibit the receipt or possession of a firearm by any person who “is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)).”  In its modern form, § 922(g)(3) thus strips a person of their fundamental right to possess a firearm the instant the person becomes an “unlawful user” of marijuana. And in the United States’ view, all users of marijuana are “unlawful users.”

Without a historical tradition of infringing on rights protected by the Second Amendment of those who use intoxicating substances, the statute is unconstitutional. From the order; p. 7

The question here is thus whether stripping someone of their right to possess a firearm solely because they use marijuana is consistent with the Nation’s historical tradition of firearm regulation. If it is not, then § 922(g)(3) cannot be constitutionally applied to Harrison—no matter the reasonableness of the policy it embodies.

The court goes on to show, while there were occasional laws prohibiting possession or use of firearms while intoxicated, there were no laws prohibiting possession of firearms merely because the possessor used intoxicating substances.  The previous laws, which were not common, only prohibited carry or use in very narrow circumstances, sometimes only on very narrow dates, such as December 31 to January 3rd. 

In short, there is no historical tradition of banning the right to keep and bear arms, simply because a person uses intoxicating substances. The conclusion of the court is clear.  From the order:

Because the Court concludes that 18 U.S.C. § 922(g)(3) violates Harrison’s Second Amendment right to possess a firearm, the Court declines to reach Harrison’s vagueness claim. The Motion to Dismiss the Indictment is GRANTED. Accordingly, the Indictment is DISMISSED WITH PREJUDICE.

IT IS SO ORDERED this 3rd day of February 2023.

The court noted the late provenance of the ban, which did not occur until 1986. This shows how the slippery slope works in practice. There was no such ban in 1938, when the first list of federal prohibited providers was created. The "users or addicted to" group was added in 1968. It only applied to receiving firearms, not to possessing them. Finally, the group was significantly enlarged in 1986, and the prohibition enlarged to include mere possession.

The slippery slope facilitating many infringements on rights protected by the Second Amendment has moved court jurisprudence a long way since 1942. The Supreme Court has an originalist and textualist majority for the first time in 80 years. They are beginning to uphold the Second Amendment as written.

©2023 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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