A federal judge in Pennsylvania has dismissed a lawsuit brought by the then-District Attorney of Warren County, Pennsylvania and the Second Amendment Foundation that challenged the federal prohibition on gun possession by “unlawful” users of drugs. Robert Greene is a registered medical marijuana user in Pennsylvania, but state law doesn’t matter when it comes to Section 922 (g)(3). Even in the 40 states where medical marijuana is allowed and the 24 states where it can be used recreationally, owning a gun and using cannabis is a federal crime.
Though the Fifth Circuit Court of Appeals has ruled in favor of a couple of defendants who’ve been criminally charged with violating 922 (g)(3), arguing that the national tradition of firearms may support bans on possessing guns while intoxicated but not for users of intoxicating substances (legal or not), U.S. District Judge Cathy Bissoon ruled last week that Greene and his co-plaintiff James Irey “has no constitutional right to use marijuana—medical or otherwise, and there are no allegations that medical marijuana is the only available treatment for their medical conditions”, so if they want to own a gun they have to give up the ganja.
Greene’s participation was especially notable. The complaint said the county prosecutor had intended to “lawfully purchase, possess, and utilize firearms and ammunition so that he may exercise his constitutional right to keep and bear arms for self-defense and all other lawful purposes” but was barred from doing because of his status as a medical marijuana patient.
Another plaintiff, Bloomberg resident and Second Amendment Foundation member James Irey already owns firearms, the suit said, but wanted to obtain a medical marijuana registration at the recommendation of his doctor.
Plaintiffs alleged the prohibition on gun ownership by cannabis users was unconstitutional, both on its face and applied to Greene and Irey. Attorneys argued that the federal law is distinct from other statutes that limit gun ownership by potentially dangerous individuals, pointing out that other restrictions are “only permitted the deprivation of one’s Second Amendment rights after a hearing, providing for due process, and then, only temporarily.”
“To say that an individual loses their right to keep and bear arms for self-defense and other lawful purposes merely because they may be ‘intoxicated’ at some point in time, by virtue of using a lawful medicine pursuant to state law, eludes logic,” the lawsuit said.
Bissoon disagreed, dismissing the challenge for failure to state a claim.
“Plaintiff Irey already possesses numerous firearms and can retain them by simply choosing an alternative treatment,” she wrote. “Plaintiff Green can purchase and possess firearms if he stops participating in the medical marijuana program.”
“Choosing to refrain from engaging in federally unlawful behavior,” the judge added, referring to cannabis use, “is not a burdensome ask.”
Unless the law itself is unconstitutional. In her ruling, Bissoon said the government had proved the law didn’t violate the Second Amendment because of historical laws disarming the intoxicated and laws disarming “those deemed dangerous.”
The problem, of course, is that if laws disarming the intoxicated are enough to deprive people who use intoxicating substances from exercising their Second Amendment rights, anyone who’s copped a buzz from a beer could be deemed a prohibited person. And while some drug users may be deemed dangerous, that’s certainly not the case for every drug user. Again, 40 states have said marijuana can be used to treat certain medical conditions, which suggests that the vast majority of states don’t consider marijuana users to be dangerous.
Bissoon hinted that Greene might have been more successful had this been an as-applied challenge, instead of a facial challenge to the law in all circumstances. We’ll see if the individual plaintiffs and the Second Amendment Foundation try to file a new as-applied lawsuit or if they appeal Bissoon’s decision to the Third Circuit Court of Appeals, but Bissoon’s decision is a disappointing setback for those of us who don’t believe gun owners should have to choose between their health and their civil rights.
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