Harris Bricken: Yet Another Federal Court Decision on Cannabis Gun Rights

Yet another federal court in yet another federal appellate circuit just held that federal cannabis gun rights restrictions are unlawful. Let’s look at why that is, and why this is going to keep happening in federal courts across the country.

The cannabis gun rights cases

The federal Gun Control Act of 1968 strips all gun rights from cannabis users, even in states that allow it. Some states have tried to pass laws that circumvent federal gun control law, which is a losing proposition. At the same time, a 2022 U.S. Supreme Court case, New York State Rifle & Pistol Association, Inc. v. Bruen, simplified the test to determine whether a gun control law violates the Second Amendment. This has led to repeated challenges in various federal courts – including one big loss in a Florida federal court, and a big win in an Oklahoma federal court. Both of those decisions are on appeal (in the Eleventh and Tenth federal circuits, respectively).

Texas weighs in

And as of a few days ago, a federal court in Texas (in a case called United States v. Connelly) handed a victory to a cannabis user, setting up a likely appeal by the federal government to the Fifth Circuit. We are heading for a series of appeals, and a possible circuit split.

Connelly‘s procedural posture is different from the other cases I discussed. The court initially ruled against the petitioner. Prior Fifth Circuit precedent upheld federal gun rights restrictions. But last month, the Fifth Circuit held unconstitutional gun control laws for persons subject to civil domestic violence restraining orders. That case too was based on Bruen, and the Fifth Circuit went through the historical analysis and concluded that civil orders were not sufficient to take away gun rights.

The Connelly court reconsidered its earlier ruling in light of this new Fifth Circuit case. Connelly concludes that the federal gun rights restrictions are unconstitutional under Bruen‘s two-part test, which hinges on whether there is historical precedent that is relevantly similar to the modern restrictions. As with the prior cases, the government acknowledged that there is no historical precedent for stripping marijuana users of their gun rights. Instead, it relied on allegedly relevant historical analogues (i.e., laws that it claimed are similar to the current law). One of the government’s key examples was a Virginia law from the 1600s that prohibited drunk people from possessing firearms.

The court didn’t find this even remotely relevant, noting:

Consider instead a law that would prevent individuals from possessing cars at all if they regularly drink alcohol on weekends. Nobody would say that this hypothetical law is similar to DUI laws in how it regulates cars. The hypothetical law’s focus on possession, rather than use, of the vehicle imposes a much greater burden on drivers.

Cannabis gun rights and a circuit split

In the wake of Bruen, two different federal courts have reached the same conclusion about the federal gun rights restrictions. The dissenting court’s opinion, in light of the other cases, was deficient and will likely not withstand appeal in the Eleventh Circuit. Indeed, as Marijuana Moment reported, lawyers for the parties appealing the government’s Florida win just pointed out that the federal government is now resorting to lumping marijuana users in with fentanyl users. These aren’t great arguments for winning a court case!

Over the coming months, we fully expect more and more of these cases to pile up. Given the pretty clear history on this point, it seems like even a petitioner in the more politically liberal federal circuits (like the Ninth Circuit, where many of our cannabis litigators practice) will decide in favor of expanding marijuana users’ gun rights.

Stay tuned to the Canna Law Blog for more updates.

The post Yet Another Federal Court Decision on Cannabis Gun Rights appeared first on Harris Bricken Sliwoski LLP.

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Cannabis Law Journal – Contributing Authors

Editor – Sean Hocking

Author Bios

Matt Maurer – Minden Gross
Jeff Hergot – Wildboer Dellelce LLP

Costa Rica
Tim Morales – The Cannabis Industry Association Costa Rica

Elvin Rodríguez Fabilena


Julie Godard
Carl L Rowley -Thompson Coburn LLP

Jerry Chesler – Chesler Consulting

Ian Stewart – Wilson Elser Moskowitz Edelman & Dicker LLP
Otis Felder – Wilson Elser Moskowitz Edelman & Dicker LLP
Lance Rogers – Greenspoon Marder – San Diego
Jessica McElfresh -McElfresh Law – San Diego
Tracy Gallegos – Partner – Fox Rothschild

Adam Detsky – Knight Nicastro
Dave Rodman – Dave Rodman Law Group
Peter Fendel – CMR Real Estate Network
Nate Reed – CMR Real Estate Network

Matthew Ginder – Greenspoon Marder
David C. Kotler – Cohen Kotler

William Bogot – Fox Rothschild

Valerio Romano, Attorney – VGR Law Firm, PC

Neal Gidvani – Snr Assoc: Greenspoon Marder
Phillip Silvestri – Snr Assoc: Greenspoon Marder

Tracy Gallegos – Associate Fox Rothschild

New Jersey

Matthew G. Miller – MG Miller Intellectual Property Law LLC
Daniel T. McKillop – Scarinci Hollenbeck, LLC

New York
Gregory J. Ryan, Esq. Tesser, Ryan & Rochman, LLP
Tim Nolen Tesser, Ryan & Rochman, LLP
Cadwalader, Wickersham & Taft LLP

Paul Loney & Kristie Cromwell – Loney Law Group
William Stewart – Half Baked Labs

Andrew B. Sacks – Managing Partner Sacks Weston Diamond
William Roark – Principal Hamburg, Rubin, Mullin, Maxwell & Lupin
Joshua Horn – Partner Fox Rothschild

Washington DC
Teddy Eynon – Partner Fox Rothschild