At least one third of Americans own some sort of firearm, and nearly half of U.S. states have decriminalized or legalized marijuana use. What most people do not know is that under federal law, it is a felony to be a “user” or “addict” of a controlled substance (including marijuana) and own or possess a firearm.

Various states have enacted laws decriminalizing marijuana dating back to the 1970s. Medical marijuana began passing in states in the mid-1990s, and the legalization of recreational cannabis started in 2012. So why now are we questioning whether marijuana users have a Second Amendment right to possess firearm?

The answer is there are several cases pending before the United States Supreme Court now where the Solicitor General is arguing that any person who uses a controlled substance–including marijuana–is in violation of 18 U.S.C. § 922(g)(3). These cases have started to pick up national attention with Law360, Newsweek, and USA Today reporting on the issue.

922(g)(3) – A Federal Felony Punishable by up to 15 years in prison

Ever since the Supreme Court’s decision in Bruen in 2021, various challenges have been brought to federal firearm laws on the grounds that the Nation’s history and tradition do not support the Second Amendment regulation.

Under 18 U.S.C. § 922(g)(3), an individual is prohibited from possessing a firearm if they are “an unlawful user of or addicted to any controlled substance[.]” You have likely heard of schedule I, II, III, IV, or V controlled substances. For example, schedule I controlled substances under federal law have “no currently accepted medical use and a high potential for abuse” and include heroin, LSD, ecstasy and yes, marijuana.

An ”addict” for 922(g)(3) purposes is defined as “any individual who habitually uses any narcotic drug so as to endanger the public morals, health, safety, or welfare, or who is so far addicted to the use of narcotic drugs as to have lost the power of self-control with reference to his addiction.” 21 U.S.C. § 802(1).

But what defines a “user” under § 922(g)(3)? That may very well be the big question for the Supreme Court in the upcoming cases. The Code of Federal Regulation defines an “Unlawful user of or addicted to any controlled substance” as:

A person who uses a controlled substance and has lost the power of self-control with reference to the use of controlled substance; and any person who is a current user of a controlled substance in a manner other than as prescribed by a licensed physician. Such use is not limited to the use of drugs on a particular day, or within a matter of days or weeks before, but rather that the unlawful use has occurred recently enough to indicate that the individual is actively engaged in such conduct. A person may be an unlawful current user of a controlled substance even though the substance is not being used at the precise time the person seeks to acquire a firearm or receives or possesses a firearm. An inference of current use may be drawn from evidence of a recent use or possession of a controlled substance or a pattern of use or possession that reasonably covers the present time, e.g., a conviction for use or possession of a controlled substance within the past year; multiple arrests for such offenses within the past 5 years if the most recent arrest occurred within the past year; or persons found through a drug test to use a controlled substance unlawfully, provided that the test was administered within the past year. For a current or former member of the Armed Forces, an inference of current use may be drawn from recent disciplinary or other administrative action based on confirmed drug use, e.g., court-martial conviction, nonjudicial punishment, or an administrative discharge based on drug use or drug rehabilitation failure.

42 C.F.R. § 478.11.

Under this definition, a person who has a single positive drug test in the past year is prohibited from possessing a firearm under § 922(g)(3). Moreover, individuals who regularly use marijuana in states where it is medically or recreationally legal clearly fall under this definition of “user.”

State versus Federal Supremacy

24 states and two territories have legalized marijuana either medically or recreationally. However, marijuana remains a schedule I controlled substance under federal law. So does a person who legally uses marijuana under state law violate federal law if they own a gun? Yes, according to the Solicitor General.

This is because under the U.S. Constitution, when federal law conflicts with state law federal law will always win. This is known as the Supremacy Clause.

The Real Question: Does the Nation’s History and Tradition Support 922(g)(3)’s Second Amendment Ban?

Under Bruen, the Supreme Court held that for a regulation on the Second Amendment to be constitutional, the government must prove that the Nation has a history and tradition of such regulation. This has been a hard sell for the government given many drugs were not regulated until well after the founding, and § 922 was not implemented until the Gun Control Act of 1968.

In United States v. Connelly, the Fifth Circuit Court of Appeals held that historical precedence does not support disarming a sober citizen based solely on past use of a controlled substance. The Solicitor General is now seeking to overturn that decision in United States v. Hemani, and other cases in the Fifth and Eighth Circuit.

In another case out of the Eleventh Circuit, Florida residents that used medical marijuana sought a ruling that applying the law to them would violate their Second Amendment rights in Florida Commissioner of Agriculture v. Bondi. There, the government argued that the Nation’s history and tradition supported disarming felons, the mentally ill, drug addicts, and alcoholics.

The Eleventh Circuit flatly rejected each of the government’s proposed historical analogues finding them less burdensome than the restrictions placed on modern Americans under § 922(g)(3).

What Happens Next?

Right now, several cases are pending in the Supreme Court but none have been granted review. We will know this fall whether the Supreme Court will decide to hear these cases or not. If the Supreme Court votes to grant certiorari, then the government will have to prove that the courts of appeals erred in holding that no historical laws are on par with the broadly restrictive text of 922(g)(3). This holding has the potential to affect millions of Americans who use marijuana, whether legally or not, and have a firearm in their possession.

Contact Evergreen Attorneys Today

If you have been charged with a federal firearm felony or other federal offense, contact the lawyers at Evergreen Attorneys today for a free consultation. We are at the forefront of the fight for constitutional rights and have the knowledge and experience to fight your case. We can be reached out (303) 948-1489 or by email at [email protected].