I've seen more than a few folks, including conservatives like former Rep. Trey Gowdy argue that Hunter Biden is being prosecuted for buying a gun at the same time he was abusing cocaine because of his name; claiming that charges for being an unlawful user of drugs are rarely if ever prosecuted by the Department of Justice.

While it may be the case that these specific charges aren't often filed, it's also true that there are defendants whose last name isn't "Biden" who've been sentenced to years in federal prison after being convicted of possessing a gun while "unlawfully" using drugs like marijuana. Just ask Patrick Darnell Daniels, who got a 46-month prison sentence after he was convicted by a jury for possessing guns while regularly using marijuana. 

Even in states where marijuana has been legalized for medicinal or recreational use, it remains illegal under federal law to possess a firearm while using the drug. But should that federal prohibition come into play when individuals are charged with violating state or local laws barring drug possession? One recent case out of Nebraska is highlighting the continuing conflict over whether only "law-abiding citizens" possess any Second Amendment rights. 

In January, 2023 Ronald Kurdi was pulled over in Fremont, Nebraska on a routine traffic stop. Kurdi told officers he had a handgun in a secured container in the luggage area of his SUV, but when police also discovered a small amount of marijuana and a bit of undescribed "paraphernalia" Kurdi was arrested on drug charges and his gun was confiscated. 

In an interview with the Tribune in 2023, Kurdi admitted he had marijuana with him at the time he possessed the firearm.

However, he said he believed the ever-changing legal status of cannabis across the nation raised questions for him and his attorney about restricting a person’s Second Amendment rights for merely using a substance that is legal in a particular state.

“I am moving to Missouri. If I were to go to Missouri, became a resident and decided I wanted a medical (cannabis) card, I am signing away my gun rights in that state if I get the card,” Kurdi said.

The short answer is "yes." No matter the status of marijuana in any particular state, under federal law you're not allowed to partake if you possess a firearm. Again, that's federal law. I'm not aware of any state-level statute prohibiting pot users from owning firearms, at least in those states that have legalized either medical or recreational marijuana. Nebraska, it should be noted, hasn't legalized marijuana for either medicinal or recreational use.

Even so, possessing a small amount of pot is essentially a minor offense. In May of last year Kurdi took a plea deal offered by the D.A. in Dodge County; pleading guilty to one count of possession of one ounce or less of marijuana and paying a $300 fine. But when he tried to get his gun back from the Fremont police, the agency refused to release the pistol to him, even when a judge ordered the department to hand it over.

City Attorney Molly J. Miller filed an appeal seeking to overturn Klein’s June 15 ruling that ordered the Fremont Police Department to return the gun, stating in a motion filing that doing so would cause the FPD to violate federal law.

Miller cited as the reason for the appeal the fact that Kurdi had pleaded guilty to possession of marijuana, 1 ounce or less, noting that under federal firearms law — 18 U.S. Code 922 (d)(3) — it is unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person who is an unlawful user or is addicted to any controlled substance.

After hearing the city’s appeal, Klein amended his original order and issued a new ruling allowing the city to retain possession of Kurdi’s handgun for a maximum of one year from the date he pleaded guilty. Klein ruled that Kurdi could regain possession of the firearm after May 3, 2024.

In other words, the Fremont PD would be committing a federal felony by returning Kurdi's pistol, or so the city attorney claimed. Unless Kurdi specifically informed the arresting officers that he was a cannabis user, however, I don't think the statute would actually apply. And the judge's ruling that permitted the police department to keep ahold of Kurdi's gun for another twelve months is downright bizarre, given that Kurdi was still eligible to purchase another firearm from a private seller or an FFL during that year-long wait. 

The good news is that Kurdi finally did get his gun back. The bad news is that it took the full twelve months before the Fremont PD released the pistol to him. Last Thursday Kurdi was able to take possession of his Ruger, but that was a few weeks after the judge's waiting period had played out. 

The Supreme Court will soon issue its opinion in U.S. v. Rahimi, which will almost certainly shed some light on who can be prohibited from possessing a firearm or ammunition. The Court has also kept ahold of six other prohibited persons cases that will likely be vacated and remained back to lower courts after Rahimi is decided, and one of those cases is U.S. v. Daniels. If the Court does establish a "dangerousness" test for depriving defendants of their Second Amendment rights, it would go a long way towards clearing up the current confusion evident in cases like Kurdi's. If it issues a narrow decision that doesn't go beyond the specific facts of Zachey Rahimi's case, on the other hand, lower courts are going to keep making it up as they go along, and outcomes like Kurdi's could become a common occurrence in the criminal justice system.