“Paola Connelly is a non-violent, marijuana smoking gunowner,” read the first sentence of a decision from the United States Court of Appeals for the Fifth Circuit in the case of US v. Paola Connelly. The decision sets up a possible blow against a prohibition of marijuana usage by gun owners, this time citing the nation’s “history and tradition of firearms regulation.”
The story starts with a messy incident between neighbors that involved the police, and when they entered Paola and John Connelly’s (her husband) home, police found firearms and drug paraphernalia used by her husband. According to court documents, “…[police] spoke with Paola, who indicated that she would at times smoke marijuana as a sleep aid and for anxiety.” It also stated: “There was no indication that Paola was intoxicated at the time.”
Using this evidence, Mrs. Connelley was indicted by a grand jury on two charges:
- violating 18 U.S.C. § 922(g)(3) by possessing firearms and ammunition as an unlawful user of a controlled substance, and
- violating 18 U.S.C. § 922(d)(3) by providing firearms and ammunition to an unlawful user of a controlled substance.
If there is one lesson to be learned here, it is that you should NEVER TALK TO THE POLICE WITHOUT A LAWYER PRESENT.
Today, under federal law, firearms owners are prohibited from using controlled substances, a question that is asked on form 4473 for each firearm purchase. It’s also at the core of the charges against Hunter Biden. There is simultaneously a move by the federal government to remove marijuana from the scheduled list of regulated substances. But it begs the question of how gun owners, like Mrs. Connelly, might be treated under the law (if unchanged) if found to be using the drug recreationally.
In the subsequent litigation proceedings Mrs. Connelly moved to dismiss based upon the Unconstitutionality of the charges, but the District Court denied the motion. Mrs. Connelly then filed a motion to reconsider her motion to dismiss after the Rahimi decision was issued earlier this year. The District Court agreed, finding that the charges are facial violations of the Second Amendment as applied to Mrs. Connelly. The government, of course, appealed.
Writing for the three judge panel, Circuit Judge Engelhardt, summarized:
The short of it is that our history and tradition may support some limits on a presently intoxicated person’s right to carry a weapon… but they do not support disarming a sober person based solely on past substance usage.
Bruen is mentioned 22 times in the 22-page decision, and the panel of judges grappled with how to apply the text, history, and tradition test of limiting the rights of intoxicated and dangerous persons. The first thing they noted in a study of our history is that, “…early Americans, including the Founders, consumed copious amounts of alcohol.”
They also noted that, “… our history and tradition of disarming ‘dangerous’ persons does not include non-violent marijuana users like Paola,” adding that, “Founding-era laws concerning guns and alcohol were few, and primarily concerned with (1) misuse of weapons while intoxicated and (2)…”
The court presented its best attempt at a founding era analogy with this:
So the Bruen-style analogical question is this: which is Paola more like: someone whose mental illness is so severe that she presents a danger to herself and others (i.e., someone who would be confined and deprived of firearms under this tradition and history of Second Amendment regulation)? Or a repeat alcohol user (who would not)? Paola falls into the latter camp. While intoxicated, she may be comparable to a severely mentally ill person whom the Founders would disarm. But, while sober, she is like a repeat alcohol user between periods of intoxication, whom the Founders would not disarm.
The panel ultimately arrived at their conclusion that the charges were Unconstitutional, but with the admonition that it was a ruling narrow in scope:
Paola’s § 922(g)(3) charge is inconsistent with our history and tradition of firearms regulations for the reasons discussed above, so we AFFIRM the judgment of dismissal as to her as-applied challenge. But that holding is narrow. There undoubtedly exist circumstances where § 922(g)(3) may apply Constitutionally, such as when it bans a presently intoxicated person from carrying firearms…
