The Supreme Court’s decision in New York Rifle and Pistol Association v. Bruen has fundamentally changed gun law in the U.S. In addition to striking down New York’s century-old concealed carry permitting scheme and establishing a right to carry a loaded gun in public, it upended the way courts evaluate all types of regulations. Citing Bruen, judges have struck down laws that set age restrictions on gun ownership, prohibit the removal of firearm serial numbers, and bar domestic abusers and those under felony indictment from possessing weapons.
Most progressives view Bruen as a major setback — if not a catastrophe — for the gun safety movement. But criminal justice reform advocates, who have long criticized more punitive gun laws, say the ruling has a silver lining.
It has to do with marijuana.
Weed laws have dramatically shifted in recent years. Less than 15 years ago, there wasn’t a state in America that allowed recreational use. But today, it’s legal in 23 states, legal for medical use in at least 15 more, and decriminalized in several others.
Despite that major shift on the state level, federal law hasn’t changed much. Marijuana is still an illegal controlled substance if you ask the feds. And that means users can’t possess guns. If you were to walk into a gun dealer today and try to buy a gun, for example, you would need to check a box on a background check form saying you don’t use drugs.
If you’ve never bought a gun, this restriction may be news to you. It’s an often-overlooked line in one of our main federal firearms laws, 922(g), which has other, better-known prohibitions that, for instance, ban domestic abusers and people with felony convictions from owning guns.
But at least twice this year, federal district judges have cited Bruen when they ruled that the provision pertaining to marijuana users, 922(g)(3), is unconstitutional. First, in February, a federal judge in Oklahoma struck down the provision in a case that involved a man who was found with marijuana and a handgun in his car. And in April, a Texas federal district judge did the same in the case of a woman who had guns and marijuana in her home.
In both cases, the federal government argued that the prohibition was consistent with “a longstanding historical tradition in America of disarming presumptively risky persons, namely, felons, the mentally ill, and the intoxicated.” But using the new test established in Bruen, the district judges found the law unconstitutional on the grounds that marijuana users don’t necessarily fit the profile of a “risky person,” and thus there’s no historical precedent to support barring possession.
The two district court rulings don’t bind other federal courts, but if the government loses again on appeal, it could establish a precedent that applies more broadly, or end up at the Supreme Court. That would be welcome news for the hundreds of defendants convicted and sentenced under that provision every year. While they make up a small proportion — roughly 5 percent — of the more than 6,000 people convicted of illegal gun possession in federal courts annually, many more face similar charges in state courts.
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“Public defenders have been talking about this for a long time — how an expansion of Second Amendment rights might actually help communities that historically have been prevented from carrying firearms, and how this might be a good thing for certain criminal justice goals,” Mona Sahaf, of the progressive Vera Institute, told me recently.
Many criminal justice reformers, like Sahaf, may not necessarily want more guns or gun ownership for fear of more violence, but they also don’t want gun laws applied unfairly or used to target Black and brown communities already scarred by the war on drugs. That’s why some, like public defenders in New York, supported parts of the Bruen decision.
“You might assume that people on a certain side of the political spectrum support the same things: criminal justice reform and a more limited Second Amendment,” Sahaf said. “But that’s never been true in the criminal defense community because these gun laws have been disproportionately used against the poor and people of color.”
Finding this particular statute unconstitutional wouldn’t fully disentangle firearm laws from marijuana. The cases in Oklahoma and Texas didn’t directly pertain to another section, 922(g)(1), which deals with felonies and firearms. In addition to that section’s more obvious uses, like barring murderers from owning guns, it also targets people convicted of nonviolent offenses like drug possession, in many cases for marijuana, if those convictions were felonies.
Even though the legal landscape has changed and several states have expunged or pardoned thousands of people with prior marijuana convictions, thousands of others still have felony convictions from the earlier days of the war on drugs. Many of them are Black people or other people of color. And if they’re caught with a gun, they could — and do — face much tougher prison sentences under current federal law.
Advocates like Sahaf say that these rulings could be a sign of a broader shift to come. Not only did the judge in the Oklahoma case find that marijuana users aren’t presumptively “risky persons” who can be barred from possessing guns under Bruen, but he also drew a distinction between violent and nonviolent felonies. Though it wasn’t directly applicable in that case, the judge wrote that nonviolent convictions, like most drug offenses, may not be an acceptable reason to bar gun possession. The Third Circuit Court of Appeals on June 6 moved in that direction, finding it unconstitutional to permanently prohibit at least some people with prior felony convictions from possessing guns.
Of course, drawing that line between violent and nonviolent felonies could be difficult and result in unintended consequences. Other judges have been reticent to mess with felony prohibitions, and on June 2, the Eighth Circuit Court of Appeals rejected such a distinction between violent and nonviolent felonies.
But it’s also not out of the question. The split between the two appeals courts could require the Supreme Court to step in. One member of the Supreme Court, Justice Amy Coney Barrett, penned a dissent during her time on an appeals court arguing that banning people convicted of nonviolent felonies from owning guns is unconstitutional. If Barrett’s views and the Oklahoma opinion are adopted more widely, it could eventually reduce the number of people facing hefty prison sentences for nothing more than having a gun and having been caught up in the war on drugs.
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