Earlier today we covered the Third Circuit's decision upholding the federal prohibition on gun ownership for "unlawful" users of drugs, which suggested that while the law is facially constitutional, there may be some circumstances where the statute does infringe on the right to keep and bear arms.
A district attorney in Pennsylvania who sued the federal government over that same prohibition on "unlawful" users of drugs possessing firearms is taking his fight to the Third Circuit Court of Appeals after his lawsuit was thrown out by a district court judge, and he could make for a very interesting test case going foward.
It wasn't long ago that we reported on the decision by Judge Cathy Bissoon, who declared that Robert Greene and his co-plaintiff James Irey have no constitutional right to "to use marijuana—medical or otherwise, and there are no allegations that medical marijuana is the only available treatment for their medical conditions", so barring medical marijuana users from owning a gun is no burden on their Second Amendment rights.
“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.”
Except that even the federal government basically turns a blind eye to individual marijuana use... unless it's accompanied by owning or possessing a firearm. More than half the country has a medical marijuana program like Pennsylvania's, and nearly half the states have decriminalized or legalized the recreational use of the drug as well. So yes, while it is still illegal to possess or consumer marijuana under federal law, it's also fair to say that statute is only selectively enforced.
Greene, who's the district attorney in Warren County, Pennsylvania, says he gave up his guns after obtaining a medical marijuana card in 2023, but he's not giving up his fight to overturn the federal law, or at least carve out an exception for himself and potentially other medical marijuana users. The plaintiffs have now appealed Bissoon's decision to the Third Circuit Court of Appeals, which has already ruled that federal prohibited person statutes can go too far in some circumstances.
It was the Third Circuit that declared Pennsylvania resident Bryan Range was improperly denied his Second Amendment rights after he pled guilty to a misdemeanor charge of falsifying his income on a food stamp application. In an en banc opinion last December, a panel declared that Range is a part of "the people" who possess the right to keep and bear arms, despite his false statement conviction. The panel also held that the federal government "did not carry its burden of showing that the principles underlying our Nation’s history and tradition of firearm regulation support disarming Range".
In U.S. v Harris, the Third Circuit concluded that there is a national tradition of prohibiting gun ownership for "dangerous people", and that presumably extends to "unlawful" drug users... at least those who pose a threat to the public or themselves. In fact, the panel's decision opens the door to gun bans for any users of lawful intoxicants like alcohol, not just marijuana or harder drugs.
In its decision, the panel suggested that courts look at a variety of factors to determine whether someone's drug use would likely cause them to pose a physical danger to others if armed, including the length and recency of the defendant’s use during and shortly before his gun possession; the drug's half-life; whether use of the drug affects a person's decision making or judgment, and the long-term physical and mental effects of the use of that drug.
Greene is a medical marijuana user, just like millions of other Americans. He's never gotten into any trouble for his behavior while using cannabis. In fact, he's continued to serve as the chief prosecutor in Warren County, Pennsylvania while regularly consuming the drug. There's no indication it's affected his job performance, so why should a judge automatically assume that it makes him too dangerous to exercise his right to keep and bear arms?
If Greene can't pass the Third Circuit's test, then arguably nobody can, and there's no way to successfully raise an as-applied challenge to Section 922(g)(3). If, on the other hand, the courts determine that Greene should be allowed to possess firearms while using marijuana medicinally, it could open the door for other medical marijuana users to regain access to their Second Amendment rights.
There are two cases now pending before the Supreme Court that challenge Section 922(g)(3), so Greene's lawsuit may be put on hold if SCOTUS grants cert to those cases in the fall. In the meantime, millions of Americans still face the risk of federal prosecution for exercising their Second Amendment rights while using cannabis, with or without a medical marijuana card.
Editor's Note: Radical leftist judges are doing everything they can to hamstring President Trump's agenda to make America great again.
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