Currently being briefed before the U.S. Supreme Court on the merits is a test of the federal statutory ban, with severe felony penalties, for any marijuana “user” who possess a firearm or even a single round of ammunition. 18 U.S.C. sec. 922(g)(3). The Supreme Court’s docket page is here. And here is the amicus brief I coauthored on behalf of the National Rifle Association, FPC Action Foundation, and Independence Institute (where I work). The lead author was NRA’s litigation director Joseph Greenlee. As always in a Greenlee brief, the originalist legal history is complete and impeccable.
Below is the Summary of Argument.
“To justify firearms prohibition for marijuana users when they are not intoxicated, the government must prove that the ban is consistent with our nation’s historical tradition of firearm regulation. That tradition supports restrictions on the use of firearms while intoxicated, but it does not support disarming individuals when they are sober merely because they sometimes use intoxicants.”
“Throughout American history, legislatures recognized that intoxication could temporarily increase the danger of firearms misuse. But they did not respond by entirely disarming people based on their status as users. Instead, historical intoxication laws regulated conduct: restricting the carrying, discharge, or purchase of firearms only while a person was intoxicated and only for as long as that condition lasted. The historical record thus reflects a consistent tradition of narrow, situational restrictions rather than categorical disarmament.”
“Moreover, because the combination of intoxicants and firearms is a problem that has persisted since the eighteenth century, the government must provide a distinctly similar historical regulation addressing it. Hemp and alcohol were both widespread and well known during the Founding Era. Hemp was extensively cultivated, widely discussed, and understood to have intoxicating properties, while alcohol abuse was pervasive and deeply troubling to the Founders themselves. Firearms and intoxicants routinely intersected—in militia service, social gatherings, celebrations, and military campaigns—making their combination a familiar and longstanding societal problem. The historical record shows that legislatures confronted these risks through narrow, conduct-based regulations rather than broad prohibitions on firearm possession.”
“Bereft of relevant support, the government elides the historical tradition of ‘firearm regulation,’ and instead offers strained analogies to civil-commitment laws for alcoholics who could not manage their affairs and to vagrancy laws that detained people in forced labor for loafing, juggling, or wearing the clothes of the opposite sex.
“The government also cites surety laws, but those laws undermine its case because they required an individualized judicial finding of dangerousness.”
“Besides contradicting the specific American historical tradition about regulating firearms and intoxicants, the prosecution of Hemani for marijuana use violates a broader rule: individual disarmament must be based on dangerousness. Yet the government has made no serious effort to establish a connection between marijuana use and dangerousness. Rather than focusing on marijuana, it discusses drugs in the abstract and relies primarily on violent incidents involving methamphetamine, heroin, tranquilizers, quaaludes, and PCP.”
Accordingly, the brief urges that section 922(g)(3) be held unconstitutional as applied to Hemani. The government’s briefing makes all sort of accusations and insinuations about him, but the only crime with which he has been charged is possessing firearms and also being a marijuana user.
