Another panel on the federal circuit that oversees Texas, Mississippi, and Louisiana decided the Second Amendment protects the gun rights of those who smoke marijuana this week.
On Wednesday, a Fifth Circuit panel unanimously ruled the federal gun ban for drug users was unconstitutional–at least as applied to one non-violent marijuana user. The three judges tossed charges against an El Paso resident stemming from her admitted use of the drug and possession of several guns. The panel, which included Donald Trump, Joe Biden, and Ronald Reagan appointees, determined the charges did not fit in the nation’s tradition of gun regulation.
“This appeal asks us to consider whether Paola’s Second Amendment rights were infringed, and the answer depends on whether § 922(g)(3) is consistent with our history and tradition of firearms regulation,” Judge Kurt D. Engelhardt, the Trump appointee, wrote in US v. Paola. “The short of it is that our history and tradition may support some limits on a presently intoxicated person’s right to carry a weapon (and for that reason Paola’s facial challenges to §§ 922(g)(3) and 922(d)(3) fail), but they do not support disarming a sober person based solely on past substance usage.”
The Paola panel’s findings mirror that of the Fifth Circuit panel in US v. Daniels.
“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,” Judge Jerry E. Smith, the Reagan appointee who was also on the Paola panel, wrote for a unanimous court in that case. “Nor do more generalized traditions of disarming dangerous persons support this restriction on nonviolent drug users. As applied to Daniels, then, § 922(g)(3) violates the Second Amendment.”
Both panels found that the federal law survived facial challenges because there were circumstances where it fit with historical tradition.
“Paola’s § 922(g)(3) charge is inconsistent with our history and tradition of firearms regulations for the reasons discussed above, so we AFFIRM the judgment of dismissal as to her as-applied challenge. But that holding is narrow,” Judge Engelhardt wrote in Paola. “There undoubtedly exist circumstances where § 922(g)(3) may apply constitutionally, such as when it bans a presently intoxicated person from carrying firearms, so we REVERSE as to Paola’s facial challenge.”
The new ruling cements the idea that the government can’t strip non-violent marijuana users of their right to own a gun–at least in the Fifth Circuit. But not all federal judges agree. In September 2023, for instance, Judge C.J. Williams, a Trump appointee in the Eighth Circuit, ruled the same provision was in line with America’s tradition of gun regulation even as applied to a non-violent marijuana user in US v. Grubb. That disagreement provides further motivation for the Supreme Court to take up a case on the Second Amendment rights of non-violent drug users since it leaves enforcement of federal law inconsistent across the states. The new ruling could even help Hunter Biden, who was recently convicted under the same provision of federal law in a different circuit.
Gun-rights activists and the federal government alike want the Supreme Court to take up the case and make a final decision on the constitutionality of the gun ban for non-violent drug users. The Department of Justice (DOJ) asked the Court to take up US v. Daniels alongside a slate of other cases related to federal gun restrictions. But, in July, the Court decided to punt on all of them for the time being.
That July move suggested it may be a while before the Supreme Court provides further guidance on the proper way to implement the test it developed in 2022’s New York State Rifle and Pistol Association v. Bruen. That standard requires any modern law that implicates Americans’ Second Amendment rights to be justified by historical analogues that date to the Founding Era. The Court has only applied the standard itself in one case, US v. Rahimi, which left a lot of unanswered questions.
In Paola, the DOJ argued the drug user ban was similar to early gun bans it said were centered on those considered “dangerous” by society, like the mentally ill. The panel didn’t agree, finding that “contrary to what the government contends,” those “restrictions on the mentally ill or more generalized traditions of disarming ‘dangerous’ persons” don’t “apply to nonviolent, occasional drug users when of sound mind.”
