Fifth Circuit Upholds Marijuana User’s Second Amendment Rights – Will the Eleventh Circuit Do the Same?

A question frequently encountered in the cannabis industry involves a cannabis user’s gun rights. This stems from the ever-present federal and state law tension overlaying marijuana in the United States — thanks to the Schedule 1 status of “marihuana” under the Controlled Substances Act. A Westlaw search quickly reveals that over the past year federal courts across the country have reached varying decisions on this or similar issues. For instance, courts in Texas and Oklahoma have held that, under certain circumstances, the Second Amendment protects marijuana users’ right to own and purchase firearms, while courts in Alabama and Mississippi have held the opposite.

Last week, for the first time since the Supreme Court’s landmark decision in N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022), a federal circuit court of appeals spoke on the interplay between federal gun laws and cannabis users. The Fifth Circuit, reversing the aforementioned Mississippi case, held that an admitted, regular cannabis user cannot be criminally liable under 18 U.S.C. § 922(g)(3) — which makes it unlawful for a person “who is an unlawful user of . . . any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802))” — for possessing a firearm while not under the influence of marijuana. The court held: “In short, our history and tradition may support some limits on an intoxicated person’s right to carry a weapon, but it does not justify disarming a sober citizen based exclusively on his past drug usage. . . . . As applied to Daniels, then, § 922(g)(3) violates the Second Amendment” (United States v. Daniels, No. 22-60596, 2023 WL 5091317, at *1 (5th Cir. Aug. 9, 2023)).

The impact of Daniels on a fairly new cannabis industry in the Southern United States, or even beyond, is yet to be seen. But, those of you that routinely read this blog would be wise to familiarize yourselves with this opinion and to watch how a pending appeal in the Eleventh Circuit, which addresses a very similar issue, shakes out.

The facts in Daniels are as follows: Police pulled over Patrick Daniels, Jr. for a minor traffic offense and arrested him for possessing firearms while being a “regular user” of marijuana — in violation of Section 922(g)(3). Though Daniels admitted to smoking marijuana regularly, there was no evidence that he was intoxicated at the time of his arrest. A jury convicted Daniels of violating Section 922(g)(3). Daniels moved to dismiss his indictment, the district court denied his motion, and Daniels appealed.

The Fifth Circuit analyzed Daniels’ as-applied challenge to Section 922(g)(3) under the two-prong standard required by Bruen. The first prong asks whether the conduct at issue is covered by the plain text of the Second Amendment. The Fifth Circuit held that it is because, though not a “model citizen,” Daniels “is a member of our political community” and therefore a member of “the people” covered by the Second Amendment. The second prong requires the government to demonstrate that its law is consistent with the history of this nation’s firearm regulation. In holding that the government failed to meet its burden, the court held that Section 922(g)(3) is not like the historical laws that banned firearm possession by those under the influence of alcohol; no historical law disarmed sober people simply because they had at some other time drank alcohol. Nor are sober individuals who have at some other time smoked marijuana like those who have historically been disarmed for being “dangerous” (those who threatened political violence or those convicted of a violent felony) or “mentally ill.”

The court “emphasiz[ed] the narrowness of [its] holding” as applied only to Daniels. It did not strike Section 922(g)(3) in all its applications. Nor did it resolve other issues regarding marijuana and firearm possession. For instance, the court did not analyze the constitutionality of Section 922(g)(3) as applied to those arrested for smoking marijuana in their living room while possessing a firearm in their bedroom. That said, Judge Stephen Higginson, in his concurrence, observed: “Although our decision is limited in scope, it is hard for me to avoid the conclusion that most, if not all, applications of § 922(g)(3) will likewise be deficient.”

The court’s decision is likely to affect an appeal pending in the Eleventh Circuit, Cooper v. Attorney General, No. 22-13893 (11th Cir.), which challenges the constitutionality of Section 922(g)(3) as it applies to medical marijuana patients. Immediately after Daniels was decided, the Department of Justice argued in a one-page brief to the Eleventh Circuit that Daniels was “incorrectly decided.” At issue in Cooper is a Florida law that contradicts Section 922(g)(3) by protecting medical cannabis patients’ right to own and purchase a firearm. Those involved in Mississippi’s medical cannabis program should pay close attention to Cooper because Mississippi, like Florida, also protects medical cannabis users’ gun rights. Arguments in Cooper are scheduled for October 5, 2023.

The Daniels and Cooper opinions will significantly impact the medical cannabis industry across the Southern United States. The Fifth and Eleventh Circuits have jurisdiction over six southern states in which medical cannabis programs, of some sort, are operating. Texas, Louisiana, and Mississippi are within the Fifth Circuit’s jurisdiction, while Alabama, Georgia, and Florida are within the Eleventh Circuit’s jurisdiction. It’s not a leap to assume that potential exposure to federal gun laws or, at a minimum, having to fill out an ATF Form 4473, which via question 11.e asks, “[a]re you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance,” have dissuaded prospective medical cannabis patients from obtaining a license in their respective state. And, in states like Mississippi and Alabama, where new medical cannabis programs need patient growth to succeed, the Daniels opinion can’t be overlooked.

We are monitoring the government’s next steps in Daniels and awaiting the Eleventh Circuit’s opinion in Cooper. We will update this blog on the progress of both cases. Meanwhile, it will be fascinating to see how the Daniels opinion affects the medical cannabis industries in Mississippi, Louisiana, and Texas.

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