Judge Rules Ban on Gun Possession for Marijuana Users Unconstitutional

[MechAg94]

Judge Rules Ban on Gun Possession for Marijuana Users Unconstitutional
https://www.ammoland.com/2023/02/judge-rules-ban-on-gun-possession-for-marijuana-users-unconstitutional/#axzz7sdXL6ZNs

Read more: https://www.ammoland.com/2023/02/judge-rules-ban-on-gun-possession-for-marijuana-users-unconstitutional/#ixzz7sdY6ueOe
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The United States District Court for the Western District of Oklahoma, Judge Patrick R. Wyrick presiding, heard the case.  The court is in the jurisdiction of the Tenth Circuit Court of Appeals.

The Court found the prohibition on the possession of firearms as an unlawful user of marijuana was unconstitutional because there is no historical tradition of removing the right to keep and bear arms from people who use intoxicating substances. Here is a summation of the Court order.

Read more: https://www.ammoland.com/2023/02/judge-rules-ban-on-gun-possession-for-marijuana-users-unconstitutional/#ixzz7sdYFwNE8
Under Creative Commons License: Attribution
Follow us: @Ammoland on Twitter | Ammoland on Facebook

From the order, p. 1:

Before the Court is Defendant Jared Michael Harrison’s Motion to Dismiss the Indictment (Dkt. 17), which argues that the statute he is charged with violating, 18 U.S.C. § 922(g)(3), is unconstitutionally vague, in violation of the Due Process Clause, and unconstitutionally infringes upon his fundamental right to possess a firearm, in violation of the Second Amendment. For the reasons given below, the motion is GRANTED.

This news broke a day or two ago.  Another facet of gun control hits a wall.  Hopefully, the higher court doesn't open up a door for it. 

[MechAg94]

https://fingfx.thomsonreuters.com/gfx/legaldocs/zdpxdnqykpx/02032023harrison.pdf

In the conclusion at the very end, the judge makes the point that the he could have been held in pre-trial confinement for a case in Texas that I think is active.  They instead released him.  That argues against the idea that he is a danger and should not be allowed to possess a gun basd solely on possession of marijuana. 

The decision is 54 pages and takes apart each of the claims/arguments made by the prosecution.  If you have the time, it might be useful to skim through. 

[230RN]

It looks like more and more judges are starting to realize the Constitution means what it says and doesn't mean what it doesn't say.

I'm a little leery of the historical test concept, though.  I can't put my finger on it but it looks like it can ultimately be inappropriately applied to other things.

It's like the "no rights are absolute" pronouncement.  Technically, it's true, for example in capital punishment.  The trouble with it is the statement itself puts no lowest point at which rights can be limited.

In other words, every enumerated right can be limited right down to the point where it doesn't exist any more.  Which is very near where we are in re gun rights.

The tripping point is the term "reasonable" limitations.

What was reasonable to Sarah Brady was not reasonable to me.

[Regolith]

I'm a little leery of the historical test concept, though.  I can't put my finger on it but it looks like it can ultimately be inappropriately applied to other things.

I think the biggest issue with it was that it was too vague. Better than a ruling that was more explicit but let a lot of BS stand, but way too vague nonetheless. Leaves a lot of potential wiggle room, given that there were many gun laws that plainly violate the 2nd Amendment that were either historically practiced or have been on the books long enough that an argument could be made that they're "historical".

I'd have been much happier with a definite "strict scrutiny" standard, at the very least.

[230RN]

That's why I harbor the secret notion thar the Constitution forms a new "Common Law" which corrected some of the old  "Common Law." (Some of which is still good and valuable.)

So in light of your concern about those older laws which violated what became the Second Amendment, I see them as invalidated under the new common law, i.e., the Constitution and Bill Of Rights.

I don't want to debate my idea of a new Common Law because I really haven't thought it all out so I sort of keep it as "RESTRICTED"  rather than "SECRET ."  I think the "historical precedent" was a half-assed attempt to satisfy both sides, whereas he should have recognized that the Inventors of our country meant what they said, quite literally, and he should have gone strict scrutiny as you point out.

The Bill Of Rights was adopted to prevent the government's misconstruction or abuse of those rights --to in fact, establish new and updated rights, not new and updated privileges.


Terry, 230RN

[Hawkmoon]

It's like the "no rights are absolute" pronouncement.  Technically, it's true, for example in capital punishment.  The trouble with it is the statement itself puts no lowest point at which rights can be limited.

Attorney friends like to throw that at me when I complain about 2A infringements. They always tell me that ALL the rights in the Bill of Rights have historically been limited, and the limitations have been approved by the Supreme Court.

My response is that the other rights in the BoR don't state in the amendment itself that it shall NOT be limited. The 2A does. It doesn't say "... the right to keep and bear arms shall not be unreasonably infringed." "Shall not be infringed" is about as absolute a statement as you can make.

Compare with the 4th Amendment, which protects against "unreasonable" searches and seizures. Once that door has been opened, all that's left is to argue about what's reasonable and what's not. The 2A -- on its face -- doesn't open that door.

[MechAg94]

Attorney friends like to throw that at me when I complain about 2A infringements. They always tell me that ALL the rights in the Bill of Rights have historically been limited, and the limitations have been approved by the Supreme Court.

My response is that the other rights in the BoR don't state in the amendment itself that it shall NOT be limited. The 2A does. It doesn't say "... the right to keep and bear arms shall not be unreasonably infringed." "Shall not be infringed" is about as absolute a statement as you can make.

Compare with the 4th Amendment, which protects against "unreasonable" searches and seizures. Once that door has been opened, all that's left is to argue about what's reasonable and what's not. The 2A -- on its face -- doesn't open that door.

I agree with you on that language.  That is the trap I think judges and maybe lawyers fall into.  The lawyers are finding whatever means they can imagine to support their case and judges too often get swayed by the arguments and allow strict limits to be watered down (usually because they allow their personal bias into the argument).