In defending this law, the government will likely argue that unlawful drug users are categorically more dangerous with access to firearms than ordinary citizens. Maybe. But it seems like it could be an uphill battle for the government to show that Patrick Daniels’ regular marijuana ingestion makes him appreciably more dangerous than a person who drinks liquor a comparable amount (alcohol is excluded from the list of controlled substances under federal law, and there is no alcohol-based gun prohibition in federal law, so the chronic drinker can keep his gun while the smoker of chronic faces 15 years in prison; this despite the empirical evidence showing the toxic combination of guns and alcohol).

In addition, many states have legalized marijuana, making a judgment that marijuana users are not more dangerous than (say) alcohol users. This was a key point in the argument of then-Florida Agriculture Commissioner Nikki Fried’s lawsuit on behalf of medical marijuana users in the state—a case for which the 11th Circuit heard arguments in the appeal just last month, and an issue which has been covered on this blog previously. The 11th Circuit may in fact decide to hold the case pending Rahimi.

Applying the criteria the government itself pointed to in assessing the reasonableness of a legislative determination shows the difficulty the government faces in Daniels. First, the government said courts should assess the breadth of the law. “So, if it’s sweeping broadly or indiscriminately and capturing people we think of as ordinary citizens, that’s going to be a problem.” Section 922(g)(3) seems to capture a lot of ordinary citizens who lawfully use marijuana in their state. (Consider that every gun owner with a medical marijuana card is likely subject to the bar.)

Next, the government said courts should review the “justifications and the evidence before the legislature.” Depending on what it can show about specific types of connections, I could see trouble for the government with showing that mere unlawful use, even at a different time from gun possession, creates heightened risk.

In oral argument, the government also urged the courts to look for “legislative consensus.” I’m not sure how many state-level disarmament provisions there are for illegal drug use, but the growing state-level consensus in favor of legalizing marijuana at least cuts against this argument, one would think. The same day as the Rahimi arguments, Ohio became the 24th state to legalize recreational marijuana.

— Pepperdine Law Professor Jake Charles in Dangerous and Irresponsible Citizens

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