An evolving legal landscape for marijuana and firearms

Two recent federal appeals court decisions—United States v. Harrison from the 10th Circuit and Florida Commissioner of Agriculture v. Attorney General from the 11th Circuit—signal a fundamental shift in how courts evaluate federal restrictions on firearm ownership by marijuana users. Pursuant to the U.S. Supreme Court’s new heightened scrutiny for Second Amendment cases, lower courts have increasingly rejected broad categorical prohibitions of gun ownership by marijuana users.

The new constitutional framework

Both circuits applied the framework established in the Supreme Court’s 2022 New York State Rifle & Pistol Ass’n v. Bruen decision, which requires the government to demonstrate that firearm regulations are “consistent with this Nation’s historical tradition of firearm regulation.” This standard has proven particularly challenging for the federal prohibition on gun ownership by marijuana users under 18 U.S.C. § 922(g)(3), as courts struggle to find historical analogues that justify disarming an entire class of people based solely on their substance use.

The 10th Circuit’s decision in Harrison is noteworthy because it involved illegal recreational marijuana use rather than state-legalized medical use. The case involved a defendant who was pulled over for running a red light in Oklahoma. The defendant was sober, but police smelled marijuana, searched his car, and found a loaded revolver plus various marijuana products, which led to a federal charge of firearm possession by an unlawful drug user. Despite clearly illegal marijuana possession, the court concluded that the government must individually prove that non-intoxicated marijuana users “pose a risk of future danger” rather than simply assuming all marijuana users are categorically dangerous. The case was sent back to the District Court for the Western District of Oklahoma with new criteria for conviction and represents a dramatic departure from the previous approach of treating drug use as an automatic disqualifier for Second Amendment rights.

The 11th Circuit went even further in the Florida case, which involved two plaintiffs who were registered medical marijuana patients who were denied gun purchases and one more who was a gun owner who wanted to use medical marijuana but feared prosecution. All of the plaintiffs sued the federal government to challenge its prohibition. Although the District Court for the Northern District of Florida dismissed the case reflexively, the 11th Circuit sent it back on appeal, explicitly rejecting two of the government’s most common historical analogies. 

First, the court ruled that medical marijuana patients could not be compared to convicted felons because the plaintiffs had never been convicted of any crime—at most, two were committing a federal misdemeanor through marijuana possession. Crucially, the court noted that there is no historical tradition of categorically disarming misdemeanants, and that felony dispossessions require a judicial determination of guilt before stripping Second Amendment rights. (Note that  misdemeanors regarding violent acts like domestic violence can categorically disqualify gun ownership.)

Second, the court also rejected the “dangerous individuals” analogy, finding that the complaint contained no allegations about frequency of use, side effects, or impaired judgment. Instead, the medical marijuana patients in the case appeared to “use rational thought in making their decision to use marijuana and would stop their marijuana use if they were placed at risk of criminal prosecution.” This rational, controlled use was “a far cry from that of addicts and alcoholics whose actions are controlled by their need to use alcohol or drugs.” The court emphasized that these patients were participating in Florida’s highly regulated medical marijuana program, not engaging in illegal drug trafficking, and posed no “credible threat” to public safety.

Individualized assessments replace categorical bans

What emerges from these decisions is a requirement for individualized factual determinations rather than sweeping categorical prohibitions. As the 11th Circuit noted, while the government “very well may prove at a later stage of litigation, after development of a factual record, that Appellants can fairly be considered relevantly similar to felons or dangerous individuals,” such determinations cannot be made based on marijuana use alone. 

However, the Supreme Court has communicated that lower courts can uphold firearm regulations when individualized danger is present. In United States v. Rahimi, decided in 2024, the Supreme Court held that an individual who is a credible threat may have their firearms temporarily confiscated without a trial. This shift, following Bruen and Rahimi, does not give blanket protections to marijuana users, but it has led courts to assess whether specific individuals pose actual risks rather than relying on legislative assumptions. Although these rulings align with a recent decision from the Third Circuit, the Eighth Circuit has been much more nuanced, saying gun prohibitions for substance users are not “facially unconstitutional” and can be broadly applied to all felons. These inconsistencies between Circuit court jurisprudence may soon compel the Supreme Court to take up this issue.

The commandeering problem

These judicial developments occur against a backdrop of practical enforcement challenges that further complicate federal marijuana prohibition. The anti-commandeering doctrine, rooted in the 1997 Supreme Court decision Printz v. United States, prevents the federal government from compelling state and local officials to enforce federal law. This constitutional limitation creates significant enforcement gaps in areas where federal agencies lack sufficient resources.

Unlike pharmaceutical regulation, where the Food and Drug Administration (FDA) can effectively monitor a relatively small number of manufacturers and distributors, marijuana prohibition requires extensive state and local police powers to investigate, arrest, and prosecute individual users and small-scale distributors. Regarding firearms, many, if not the majority, of firearm transfers happen between private individuals without background checks or federal firearms licenses (FFLs), and are not monitored by the federal government. The federal government can say that gun transfers to marijuana users are illegal among private individuals, but it cannot force a state to enforce that law, and the federal government lacks the personnel and resources to enforce the prohibition without state cooperation.

In these cases, there was no commandeering challenge. But it is notable that in the 10th Circuit case, Oklahoma was attempting to enforce federal law on recreational possession when the state does not enforce federal law for medical marijuana use. Florida has a similar arrangement with its marijuana laws. As states have increasingly legalized medical and recreational marijuana, they have withdrawn this crucial enforcement support. The Rohrabacher-Farr Amendment, referenced in the 11th Circuit’s decision, also explicitly prohibits the Department of Justice from using federal funds to interfere with state medical marijuana programs, further constraining federal enforcement capabilities.

A changing legal landscape

The combination of heightened constitutional scrutiny and practical enforcement limitations is creating a perfect storm for federal marijuana prohibition. Courts are demanding individualized proof of danger before stripping citizens of gun rights, while states are refusing to provide the enforcement mechanisms necessary for effective prohibition. The result is a patchwork system where federal law remains technically supreme but practically unenforceable in many jurisdictions.

These developments suggest that categorical federal restrictions on marijuana users’ constitutional rights are becoming increasingly untenable. As more circuits require individualized assessments and more states legalize marijuana, the gap between federal prohibition and practical reality will likely continue to widen, potentially forcing either legislative reform or executive action to resolve these fundamental tensions. However, gun owners should understand that, as of now, their guns will likely be confiscated if they are caught possessing marijuana.

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