Second Amendment

Biden Decries Criminalization of Cannabis Consumers Even As He Insists They Have No Second Amendment Rights

Hours before the president said "no one should be jailed" for marijuana use, his Justice Department was saying no one who uses marijuana should be allowed to own guns.


In his State of the Union address this month, President Joe Biden declared that "no one should be jailed for simply using" marijuana or "have it on their record." He amplified that message on X (formerly Twitter) that night, saying, "No one should be jailed just for using or possessing marijuana." Biden said those things on the same day that federal prosecutors in North Carolina filed a brief defending the federal ban on gun possession by cannabis consumers, whom they likened to "lunatics" and violent felons.

Biden, who during his 2020 campaign promised to "decriminalize the use of cannabis," thinks marijuana users are not doing anything that justifies arresting them. Yet his Justice Department simultaneously insists marijuana users are so dangerous that they cannot be trusted with guns even when they are completely sober—so dangerous, in fact, that they are altogether excluded from "the people" whose "right to keep and bear arms" is guaranteed by the Second Amendment. That insulting and scientifically baseless portrayal of cannabis consumers could prove to be a problem for a president who is desperate to motivate young voters by touting his supposedly enlightened views on marijuana.

'The People' Do Not Include Marijuana Users

The Biden administration has been pushing its benighted description of marijuana users in federal courts since 2022. Its argument has been rejected by several judges, including a unanimous 5th Circuit panel. Last October, Louise Flanagan, a federal judge in North Carolina, joined them when she dismissed a charge under 18 USC 922(g)(3), which makes it a felony for an "unlawful user" of a "controlled substance" to receive or possess firearms. In a March 7 brief, two assistant U.S. attorneys, David Bragdon and Sarah Nokes, urge the U.S. Court of Appeals for the 4th Circuit to overturn Flanagan's decision.

As is often true in criminal cases that raise civil liberties issues, the defendant in United States v. Alston is not exactly sympathetic. But keep in mind that the Biden administration's argument is not limited to cannabis consumers with a history of violence. It applies to all of them, even if they have never done anything to suggest they pose a threat to public safety and even if they live in states that have legalized marijuana. Judging from survey data on past-month consumption, more than 40 million Americans  qualify as "current" marijuana users, which according to the Justice Department means they have no Second Amendment rights.

This case stems from the arrest of Carlos Alston, whose crimes were not limited to marijuana use. In January 2023, Bragdon and Nokes say, a police officer approached Alston while he was "waiting in line at a restaurant drive-thru" in Henderson, North Carolina. The officer "told Alston that there were active warrants for his arrest and commanded Alston to show his hands." Alston, who was wanted on a charge of assault with a deadly weapon, "instead retrieved and pointed a firearm at the officer." The officer "drew his duty weapon and fired a shot at Alston, striking him in the lower body." Then Alston "exited his vehicle and ran from the officer," who caught him "after a brief pursuit."

Alston's car "emitted an odor of marijuana," and a search turned up "a marijuana cigarette on the passenger seat of the vehicle," along with "a plastic baggie containing approximately 26 grams of marijuana," "digital scales," and additional "plastic baggies." His criminal history "revealed a prior state conviction for possession of marijuana and a state probation revocation…resulting from a positive drug screen indicating the presence of marijuana and failure to register for drug treatment classes, among other violations." In an interview after he was taken into custody by agents with the Bureau of Alcohol, Tobacco, Firearms, and Explosives, Alston admitted to "using marijuana daily" and to "obtaining the firearm at issue in this case after he had been indicted" in state court for assault with a deadly weapon.

Those facts resulted in two federal gun charges: one under Section 922(g)(3) and one under Section 922(g)(n), which makes it a felony for anyone who is under indictment for a crime punishable by more than a year of incarceration to receive a firearm. Alston sought dismissal of both charges, arguing that the underlying statutes are unconstitutional. Robert Numbers, a federal magistrate judge, recommended dismissal of the first charge but not the second. In accepting that recommendation, Flanagan rejected the same arguments that Bragdon and Nokes are now asking the 4th Circuit to accept.

Bragdon and Nokes argue that marijuana users are categorically excluded from "the people" protected by the Second Amendment. That claim is hard to reconcile with the Supreme Court's conclusion that "the people" who have a right to "keep and bear arms"—like "the people" who have a right "peaceably to assemble," "the people" who have a right to be secure against "unreasonable searches and seizures," and "the people" who retain unenumerated rights under the Ninth Amendment—"unambiguously" refers to "all members of the political community." The use of that phrase in the Second Amendment, the Court said in the landmark 2008 case District of Columbia v. Heller, creates "a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans."

Attempting to overcome that presumption, Bragdon and Nokes latch onto Heller's reference to "the right of law-abiding, responsible citizens to use arms in defense of hearth and home." From that phrase, they infer that "the people," contrary to what the Court explicitly said, are limited to Americans who are both "law-abiding" and "responsible."

Although anyone who consumes a federally prohibited substance is breaking the law, Bragdon and Nokes note that the 4th Circuit has said "law-abiding" does not mean "any person committing any crime automatically loses the protection of the Second Amendment." They also note the Justice Department's position that "individuals are not 'law-abiding' if they have committed felony-level conduct," which cannabis consumers typically have not (unless they happen to own guns!). Bragdon and Nokes instead rely on the claim that cannabis consumers are ipso facto not "responsible," which in their view means they are not part of "the people."

Cannabis Consumers Are Not 'Responsible'

According to the Justice Department, people are not "responsible" if "some characteristic or quality they possess makes their possession of firearms particularly dangerous." As Bragdon and Nokes see it, all cannabis consumers, regardless of how often they use marijuana or the circumstances in which they use it, are "particularly dangerous" in this context. The brief offers four reasons for that conclusion.

First, Bragdon and Nokes say, "drug users may mishandle firearms—or use firearms to commit crimes—because of 'drug-induced changes in physiological functions, cognitive ability, and mood.'" They add that marijuana intoxication "causes disinhibition, impaired judgment, [and] disorganized thinking, and can cause 'euphoria, perceptual and other cognitive distortions, hallucinations, and mood changes,' particularly in higher doses."

While it is surely true that "drug users may mishandle firearms" when they are intoxicated, the same could be said of people who consume alcoholic beverages. Yet there is no blanket ban on gun possession by drinkers, and if there were it would be plainly unconstitutional.

Second, Bragdon and Nokes say, "illegal drug users often 'commit crime in order to obtain money to buy drugs'—and thus pose a danger of using firearms to facilitate such crime." They note that "criminal cases are replete with examples of crimes motivated by drug habits."

Leaving aside the point that prohibition-inflated prices foster this kind of crime, its existence does not come close to justifying the conclusion that cannabis consumers, as a group, are "particularly dangerous." How likely is it that the average patron of a state-licensed pot store in Colorado, say, will end up breaking into cars, robbing people, or burglarizing homes to fund his purchases?

Third, Bragdon and Nokes write, "violent crime may occur as part of the drug business or culture." That violence, they say, "can involve not only drug dealers, but also their customers. For example, violence may result from 'disputes and ripoffs among individuals involved in the illegal drug market.'"

The violence to which Bragdon and Nokes refer is almost entirely a product of prohibition, which creates a black market in which there is no legal, peaceful way to resolve disputes. In any case, their concern again seems misplaced as applied to marijuana users. If that Colorado cannabis consumer gets short-changed or is unhappy with his purchase, the chance that he will resort to violence as a remedy is approximately zero.

Fourth, Bragdon and Nokes say, "armed drug users endanger the police." Given "the illegal nature of their activities," the brief explains, "drug users and addicts would be more likely than other citizens to have hostile run-ins with law enforcement officers," which "threaten the safety" of the officers "when guns are involved." Alston himself "exemplified the danger drug addicts with firearms pose to police on the night of the charged offense when he threatened a police officer with a loaded firearm."

Recall that Bragdon and Nokes are defending a blanket ban on gun possession by anyone who uses marijuana, not just by cannabis consumers who are demonstrably inclined to commit violent crimes. While Biden says there is an important difference between violent criminals and people whose only crime is possessing or using marijuana, his Justice Department seems determined to blur that distinction.

As the Department of Health and Human Services recently noted, "the vast majority of individuals who use marijuana are doing so in a manner that does not lead to dangerous outcomes to themselves or others." Yet Bragdon and Nokes want the 4th Circuit to ignore that reality and focus on the tiny minority of cannabis consumers who resemble Alston.

'The Second Amendment's Plain Text'

All of this scaremongering is irrelevant, of course, unless Bragdon and Nokes are right in claiming that "the people" are limited to Americans they view as "responsible." Numbers and Flanagan rejected that claim in no uncertain terms.

While the Supreme Court "may have focused on the rights of law-abiding citizens," Numbers said, "the Second Amendment's protections extend to a broader political community—a community that includes Alston." Flanagan concurred, saying Supreme Court precedent "suggests strongly that all Americans, including those who confess to regular unlawful drug use, enjoy Second Amendment protection."

Bragdon and Nokes next purport to apply the Second Amendment test that the Supreme Court established in the 2022 case New York State Rifle & Pistol Association v. Bruen. "When the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct," Justice Clarence Thomas wrote in Bruen. At that point, he said, "the government must demonstrate that the regulation is consistent with this Nation's historical tradition of firearm regulation." If and only if the government meets that burden, a court may "conclude that the individual's conduct falls outside the Second Amendment's 'unqualified command.'"

It may seem obvious that receiving and possessing ordinary firearms are covered by
"the Second Amendment's plain text." But according to Bragdon and Nokes, that is the wrong question.

"The conduct prohibited by Section 922(g)(3) is not simply receipt (or possession, shipping or transporting) firearms, but rather possession of a firearm by a person who regularly and unlawfully uses drugs," they write. Hence "the conduct subject to the Second Amendment analysis is not merely possession (or receipt), but possession by an unlawful drug user or addict."

Numbers, by contrast, understandably thought the "conduct at issue" in Alston's case was "the receipt of a firearm." So did Flanagan.

"The government argues that the relevant conduct for purposes of constitutional inquiry is 'possessing a firearm while being an unlawful drug user,' contending that defendant's 'conduct in possessing the firearm cannot be divorced from the then-existing condition which made such  possession inherently dangerous,'" Flanagan wrote. "This argument is directly foreclosed by Bruen, which analyzed separately whether petitioners were 'part of "the people" whom the Second Amendment protects,' and 'whether the plain text of the Second Amendment protect[ed petitioner's] proposed course of conduct.' The government's position conflates the inquiry conducted above [regarding whether Alston is part of "the people"] with the separate question of whether the statute at issue burdens the right to 'keep and bear arms.' The court 'has little difficulty concluding that' § 922(g)(3), which prohibits the receipt of firearms, burdens conduct within the ambit of the Second Amendment."

Desperately Seeking Analogs

Just in case the 4th Circuit agrees with Flanagan on these two points, Bragdon and Nokes also try to show that Section 922(g)(3) is "consistent with this Nation's historical tradition of firearm regulation." That provision, they argue, is "relevantly similar" to "historical prohibitions on the possession of firearms by the mentally ill, the intoxicated and those considered to be dangerous."

Section 922(g)(3) was not enacted until 1968, and Bragdon and Nokes concede that they cannot find any Founding-era laws that likewise banned gun possession by people who use currently prohibited drugs. They say that's because "the unlawful use of controlled substances was not a problem faced by the Founding Fathers." But it was not a problem faced by the Founding Fathers because there was no such thing as "unlawful use of controlled substances" when the Second Amendment was ratified in 1791. Nor was there such a thing when the 14th Amendment made the Bill of Rights binding on the states in 1868.

As Bragdon and Nokes concede in passing, there was no such thing until 1877, when "Nevada became the first state to require a prescription for the purchase of any drug (in that case, opium)." Even then, Americans generally were free to purchase patent medicines containing currently prohibited drugs, including cannabis, over the counter or by mail without a prescription. That situation persisted into the early 20th century.

"Through much of the 19th century," Bragdon and Nokes write, "there was no need for firearm prohibitions addressing substances other than alcohol because drugs were not widely used as intoxicants in the United States until the late 19th and early 20th centuries." Since the distinction between medicine and intoxicant can be hazy and was not legally enforced, that assertion is questionable. In any case, it seems highly doubtful that Americans in the late 19th century, when patent medicines containing opium, cannabis, and cocaine were widely available, would have thought consumption of such products justified the loss of gun rights under the Second Amendment or state analogs.

As Bragdon and Nokes note, laws enacted in the 18th and 19th centuries did address the combination of alcohol and guns. But all of these laws were narrowly targeted at the danger posed by people who handled guns while intoxicated, and they prohibited public possession or use of firearms in that specific context. They did not apply to private possession, and none of them imposed a blanket ban on gun ownership by drinkers. The claim that they are "relevantly similar" to Section 922(g)(3) is therefore hard to take seriously. The 5th Circuit rejected it, and so did Flanagan.

Colonial laws "forbade shooting guns at drinking events, in taverns, or on certain holidays," Flanagan noted. "None of these laws, however, forbade the possession or acquisition of firearms; they outlawed only the active use of such weapons at sensitive times. The government's reference to nineteenth century laws limiting the intoxicated from using firearms similarly falls short where those laws apply only to actually intoxicated persons, not persons likely so to become."

In case the 4th Circuit is similarly skeptical of the analogy between gun-owning cannabis consumers and drunken gun handlers, Bragdon and Nokes suggest that marijuana users also are similar to "lunatics" whom 19th century justices of the peace were authorized to "lock up" when they were deemed "dangerous to be permitted to go abroad." Lest you think that comparison is implausible, Bragdon and Nokes offer a quote from a pre-Bruen decision in which the U.S. Court of Appeals for the 7th Circuit upheld Section 922(g)(3): "Habitual drug abusers, like the mentally ill, are more likely to have difficulty exercising self-control, making it dangerous for them to possess deadly firearms."

This argument rehashes the claim that "drug users may mishandle firearms," which is equally applicable to drinkers. In both cases, the issue is how people tend to behave when they are intoxicated, and Section 922(g)(3) goes far beyond that situation.

'Deemed Dangerous'

Finally, Bragdon and Nokes argue that "Section 922(g)(3) is analogous to the tradition
of disarming dangerous individuals," such as "individuals who carried [guns] in a manner that spread fear or terror." Are laws against such menacing behavior "relevantly similar" to a law that says anyone who occasionally relaxes with a few puffs of marijuana may not receive or possess guns? Bragdon and Nokes think so.

"Other early statutes disarmed entire groups deemed dangerous or untrustworthy," the brief notes. Bragdon and Nokes mention "those who refused to swear allegiance to the colony or the Revolution's cause." In other cases, the government's lawyers have noted that early statutes likewise disarmed Native Americans and black people. Although "these laws likely would not pass constitutional muster today," Bragdon and Nokes say, "they remain instructive" because they "demonstrate that the Second Amendment was not historically understood to pose an obstacle to disarming, as a class, certain persons deemed dangerous."

That is one way to look at it. One might also view such loathsome laws as a lesson in what can happen when legislators are free to disarm "entire groups" they deem "dangerous or untrustworthy," whether or not there is any rational basis for that judgment.

Although it may seem like I am picking on Bragdon and Nokes, their arguments reflect the position that the Justice Department has taken in one case after another. Again and again, the government's lawyers have argued that cannabis consumers are irresponsible, unvirtuous, dangerous, similar to "lunatics," and just one toke away from a murderous rampage.

That view is not just empirically unsupported and wildly implausible; it blatantly contradicts the president's avowed opposition to depriving people of their liberty "just for using or possessing marijuana." If Biden wants to persuade young voters who overwhelmingly oppose pot prohibition that he is on their side, reconsidering his reflexive defense of this odious gun law would be a good place to start.