Owning a gun while unlawfully using drugs remains a federal crime, but how that law is enforced in court depends on where you live, at least at the moment.
The Trump administration wants to see Section 922(g)(3) upheld in all circumstances, but while the Seventh Circuit Court of Appeals agrees with that position, the Fifth and Eighth Circuits have taken a different approach; the statute may be constitution, but only in certain circumstances. The Eighth Circuit maintains there needs to be an individualized finding of dangerousness on the part of the drug-using gun owner, while the Fifth Circuit has concluded that there is a historic tradition of banning actively intoxicated individuals from possessing firearms, but a ban on users of intoxicating substances (lawful or not) is not part of the national tradition of gun ownership and is incompatible with the Second Amendment.
The Supreme Court has already agreed to hear the government’s appeal of a Fifth Circuit decision that spared Ali Danial Hemani a conviction and prison time for possessing firearms while also regularly using marijuana. In the meantime, though, the Fifth Circuit continues to use its rationale to dismiss other cases, including the case of Kevin LaMarcus Mitchell.
From the decision:
On April 6, 2018, at the age of nineteen, Mitchell was arrested for outstanding warrants by the Pascagoula Police Department. A search of the vehicle in which he was arrested revealed a loaded .40 caliber pistol and a small bag of marijuana. Mitchell admitted to being a drug user but denied ownership of the drugs and the firearm recovered in the vehicle. He later admitted over a recorded jail call that the firearm, which had been reported as stolen, was in his possession. Based on these admissions, Mitchell pleaded guilty to possessing a firearm as an unlawful user in violation of § 922(g)(3), a felony offense. He was sentenced to twenty-one months of imprisonment, followed by three years of supervised release.
At the time of his § 922(g)(3) offense, Mitchell admitted to smoking three marijuana cigarettes per day.1 His Presentence Investigation Report (“PSR”) in that case noted that he “admitted to being a drug user, stating that he has used marijuana the past three years.” He later tested positive for marijuana while on supervised release in March 2022.
Following his release from prison for his § 922(g)(3) offense, Mitchell engaged in a series of domestic violence acts and other criminal conduct. Yet none of these acts culminated in a felony charge against him.
On November 27, 2023, Mitchell was arrested by a Federal Bureau of Investigation (“FBI”) task force on an outstanding warrant for unrelated charges of auto theft and flight from an officer charged by the Moss Point, Mississippi, Police Department. When executing that warrant, agents found a 9-millimeter handgun and a 9-millimeter Berretta in the room Mitchell occupied. On November 28, 2023, a criminal complaint was filed by the government in the United States District Court for the Southern District of Mississippi against Mitchell for violating § 922(g)(1)’s bar on being a felon in possession of a firearm. The predicate offense was his § 922(g)(3) conviction.
At the time of his § 922(g)(1) offense, Mitchell admitted to smoking marijuana daily. While on supervised release, Mitchell tested positive for marijuana on two occasions. In his initial appearance in this case, he also submitted a urine sample that tested presumptive positive for marijuana.
Before trial, Mitchell moved to dismiss the indictment, raising several constitutional challenges. The government opposed the motion. The district court denied his motion in April 2024.
Mitchell pleaded guilty subject to a conditional plea agreement. He reserved the right to appeal the district court’s denial of his motion to dismiss the indictment on Second Amendment grounds. The district court sentenced Mitchell to sixty-four months of imprisonment, to be followed by a three-year term of supervised release. Mitchell timely appealed.
So, Mitchell was most recently charged with possessing a firearm as an unlawful user of drugs (922(g)(3)) and for possessing guns after a conviction punishable by more than a year in prison (922(g)(1)). While the Fifth Circuit has previously said that 922(g)(3) is unconstitutional unless it’s applied to someone caught possessing a firearm while actively intoxicated, in this decision a three-judge panel concluded that 922(g)(1) is also unconstitutional with the predicate offense is possessing a firearm as an unlawful user of drugs.
“The constitutional right to bear arms is not ‘a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.’ ” Our Framers to the Constitution and Bill of Rights sought to design a structure of government that prudently balanced “democratic self-government and the protection of individual rights against excesses of that form of government.” When executing our duty to “say what the law is,” we do not implement our own value-laden views about the policy outcome today. That is not our role. We recognize that the Second Amendment may have “controversial public safety implications.” But our judicial function requires us to interpret the meaning of the Constitution by examining its text and our Nation’s historical tradition of firearm regulation under Bruen, while also adhering to our circuit precedent in this rapidly developing area of law.
Guided by history and constrained by precedent, we hold that § 922(g)(1) is unconstitutional as applied to Mitchell’s § 922(g)(3) predicate offense. Under Bruen, our Nation’s historical tradition of using intoxication laws to prohibit carrying firearms while presently intoxicated does not support permanent disarmament of a marijuana user who was not presently intoxicated while in possession of a firearm. Our precedents further instruct that being a habitual marijuana user, without more, is insufficient to justify disarmament under § 922(g)(3). That same tradition holds true for § 922(g)(1) as applied to Mitchell in this case.
The decision makes sense given what the Fifth Circuit has previously said about the constitutionality of 922(g)(3) in most circumstances. Whether or not it survives the Supreme Court’s scrutiny of the Fifth Circuit’s treatment of 922(g)(3), however, is an open question. Oral arguments in Hemani will take place on January 20, and we’ll likely get a decision next spring. As I’ve previously detailed, my guess is that SCOTUS is going to adopt a position that’s identical or similar to the stance taken by the Eighth Circuit; acknowledging the need for a finding of dangerousness before someone can be deprived of their Second Amendment rights for using drugs, but rejecting the Fifth Circuit’s position that only those actively intoxicated can be charged with violating 922(g)(3). We’ll have to wait a few more months to find out what the justices will say, but the DOJ will almost certainly appeal the Fifth Circuit’s decision in Mitchell before Hemani is decided.
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