Author: HP McLovincraft

A federal court has tossed a firearms conviction against a man because it determined that the underlying alleged crime—possession of a gun while being a user of marijuana—is unconstitutional.

The U.S. Court of Appeals for the Fifth District on Friday said the crux of the case is “whether the Second Amendment protects a habitual marijuana user from being permanently dispossessed of a firearm based on our Nation’s historical tradition of firearm regulation.”

The ruling comes as the U.S. Supreme Court weighs the constitutionality of the federal ban on gun ownership by people who use marijuana and other drugs. Numerous federal courts have issued rulings on the issue in recent years, but the legal challenge has yet to be settled.

The case of Kevin LaMarcus Mitchell is somewhat unique, in that the appeals court made an assessment about the cannabis and firearms question in the context of a ruling to invalidate a conviction for general unlawful gun possession.

What the court ultimately determined is that the federal statute § 922(g)(3) doesn’t meet the standards of Supreme Court precedent in the case New York State Rifle & Pistol Association, Inc. v. Bruen, which held that gun laws restricting the Second Amendment must be set in a way that’s consistent with the country’s founding.

The appeals court found that there was no “sufficient evidence of present intoxication” when Mitchell was prosecuted, and so “admission of being a habitual marijuana user is not enough to justify § 922(g)(1)’s permanent ban on his firearm possession.”

“The implication of a ruling to the contrary would be that Michell was always intoxicated from age nineteen onward based on his admission, and our historical laws could be applied to him at any point during that period,” the majority ruling said.

“Accordingly, we REVERSE the district court’s denial of Mitchell’s motion to dismiss and VACATE the judgment of conviction and sentence,” it said. “The government’s motion to supplement the record is DENIED as moot.”

Meanwhile, the Supreme Court recently granted a request from the Trump administration to extend the deadline to submit briefs in a case concerning the constitutionality of the federal gun ban on gun ownership for cannabis users.

After justices agreed to take the case, U.S. v. Hemani, last month, DOJ told the court there was mutual agreement between its attorneys and those representing the respondent in the case that the initial deadline for briefs and reply briefs should be revised because of the “press of other cases.”

Relatedly, a coalition of gun rights organizations recently urged the Supreme Court to expand its examination of the constitutionality of the federal firearm ban for cannabis consumers—telling justices that a recent case on the issue it accepted would not properly settle the question of the current law’s constitutionality.

With respect to Hemani, in a separate August filing for the case, the Justice Department also emphasized that “the question presented is the subject of a multi-sided and growing circuit conflict.” In seeking the court’s grant of cert, the solicitor general also noted that the defendant is a joint American and Pakistani citizen with alleged ties to Iranian entities hostile to the U.S., putting him the FBI’s radar.

Now that the Supreme Court has agreed to take up Hemani, if justices declare 922(g)(3) constitutional, such a ruling could could mean government wins in the remaining cases. The high court last month denied a petition for cert in U.S. v. Cooper, while leaving pending decisions on U.S. v. Daniels and U.S. v. Sam.

The court also recently denied a petition for cert in another gun and marijuana case, U.S. v. Baxter, but that wasn’t especially surprising as both DOJ and the defendants advised against further pursing the matter after a lower court reinstated his conviction for being an unlawful user of a controlled substance in possession of a firearm.

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