Another federal judge finds Second Amendment violation in federal law criminalizing marijuana users from gun possession

Tihs new Marijuana Moment piece, headlined "Another Federal Court Rules That Banning Marijuana Consumers From Possessing Guns Is Unconstitutional," reports on another notable new post-Bruen ruling finding a provision of federal criminal gun control laws to be unconstitutional.  Here are the basics:

Another federal court has ruled that banning people who use marijuana from possessing firearms is unconstitutional—and it said that the same legal principle also applies to the sale and transfer of guns, too.

The Justice Department has recently found itself in several courts attempting to defend the cannabis firearms ban, and its arguments have faced increased scrutiny in light of broader precedent-setting Second Amendment cases that generally make it more difficult to impose gun restrictions.

Now the U.S. District Court for the Western District of Texas has weighed in, delivering a win to Paola Connelly, an El Paso resident who was convicted of separate charges for possessing and transferring a firearm in 2021 while admitting to being a cannabis consumer.

Judge Kathleen Cardone granted a motion for reconsideration of the case and ultimately dismissed the charges last week. While the court previously issued the conviction, it said that a more recent ruling in the U.S. Court of Appeals for the Fifth Circuit warranted a reevaluation. That case relied on U.S. Supreme Court precedent finding that any firearm restrictions must be consistent with the historical context of the Second Amendment’s original 1791 ratification.

The Supreme Court ruling has been central to several challenges against the gun ban for cannabis consumers. For this latest federal district court case, the Bush-appointed judge disputed the Justice Department’s attempts to assert historical analogues to the marijuana ban, including comparisons to laws against using guns while intoxicated from alcohol and possession by people deemed “unvirtuous.”

Further, the court said that because simple cannabis possession would only rise to a misdemeanor under federal law, “any historical tradition of disarming ‘unlawful’ individuals does not support disarming Connelly for her alleged marijuana use.” Notably, the judge also cited the fact that President Joe Biden issued a mass pardon last year for people who’ve committed federal marijuana possession offenses.

The full 32-page opinion in US v. Connelly, No. EP-22-CR-229(2)-KC (W.D. Tex. April 6, 2023), is available at this link.   Footnote 8 of the opinion highlights the split of authority within the Fifith Circuit on this topic:

District courts in the Fifth Circuit have upheld § 922(g)(3) against Second Amendment challenges post-Bruen, largely employing these broader traditions. See United States v. Black, --- F. Supp. 3d ----, 2023 WL 122920, at *34 (W.D. La. Jan. 6, 2023); United States v. Sanchez, --- F. Supp. 3d ----, 2022 WL 17815116, at *3 (W.D. Tex. Dec. 19, 2022); United States v. Daniels, 610 F. Supp. 3d 892, 89597 (S.D. Miss. 2022). The Court respectfully disagrees with these cases for the reasons detailed below.  Further, the Court notes that all three of these cases predated the Fifth Circuit's deciison in Rahimi, which cast doubt on the applicability of these broader historical traditions to § 922(g)(3).  See 61 F.4th at 45051, 453. 

Some (of many) prior recent related posts:

• By 6-3 vote, SCOTUS expands Second Amendment rights by striking down NY public-carry licensing requirements 
• Are broad drug user gun dispossession statutes now constitutionally suspect after Bruen?
• District Court declares § 922(n), which criminalizes a person under indictment from receiving a firearm, to be unconstitutional
• Another district court finds § 922(n), which criminalizes a person under indictment from receiving a firearm, to be unconstitutional
• Fifth Circuit panel declares unconstitutional federal prohibition on firearm possession for someone subject to domestic violence restraining order
• Third Circuit panel upholds constitutionality § 922(g)(1)'s felon-in-possession gun prohibition after Bruen 
• En banc Third Circuit to reconsider constitutionality of § 922(g)(1)'s felon-in-possession gun prohibition after Bruen 
• Federal judge declares federal law criminalizing marijuana users from gun possession violates Second Amendment 
• With DOJ asking, will SCOTUS quickly take up a post-Bruen case on gun possession by thoe subject to DV orders?