Federal Ban on Gun Possession by Drug Users Is Often Unconstitutional
An excerpt from today’s opinion in U.S. v. Connelly, written by Judge Kurt Engelhardt, joined by Judges Jerry Smith and Irma Carrillo Ramirez:
Paola Connelly is a non-violent, marijuana smoking gunowner. El Paso police came to her house in response to a “shots fired” call. When they arrived, they saw John, Paola’s husband, standing at their neighbor’s door firing a shotgun. After arresting him, they spoke with Paola, who indicated that she would at times smoke marijuana as a sleep aid and for anxiety. {Paola [also] told officers that John and the neighbor used crack and powdered cocaine together ….} A sweep revealed that the Connellys’ home contained drug paraphernalia and several firearms, including firearms owned by Paola. There was no indication that Paola was intoxicated at the time.
Paola was charged with violating: (1) 18 U.S.C. § 922(g)(3) by possessing firearms and ammunition as an unlawful user of a controlled substance, and (2) 18 U.S.C. § 922(d)(3) by providing firearms and ammunition to an unlawful user of a controlled substance. Paola argued in a motion to dismiss, and the District Court ultimately agreed, that §§ 922(g)(3) and 922(d)(3) were facially unconstitutional and that § 922(g)(3) was unconstitutional as applied to her under the Second Amendment.
This appeal asks us to consider whether Paola’s Second Amendment rights were infringed, and the answer depends on whether § 922(g)(3) is consistent with our history and tradition of firearms regulation. 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 (and f
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