Eighth Circuit Rules – Again – That Non-Dangerous Marijuana Users Have Gun Rights

We recognize that not every group targeted by a disarmament law is the same. Consider felons. In United States v. Jackson, a panel of this court surveyed a different set of Founding-era laws and concluded that they supported a categorical ban. Supreme Court dicta singling out felon-dispossession laws as “presumptively” constitutional provided additional support.

We have “no such ‘assurances,'” however, about drug users and addicts. Nor has our review of the historical tradition surrounding them, to the extent one exists, turned up any bright-line rules. Sometimes disarming drug users and addicts will line up with the case-by-case historical tradition, but other times it will not. The district court’s task on remand is to figure out which side of the Second Amendment line Cooper’s case falls on….

Although both sides invite us to resolve Cooper’s as-applied challenge, the district court is in the best position to take the first crack at it. The factual record is thin, given that the case proceeded to a bench trial on stipulated facts, so the parties may want to supplement the record with other evidence. In the meantime, we will tie up a loose end to save everyone time on remand.

The government suggests in its briefing that Cooper is too dangerous to have a gun because he “possessed [one] for protection after [a] recent shooting at his residence.” We disagree for two reasons. First, the parties only stipulated that “officers were dispatched to [his] residence … in reference to an individual who had been shot,” not a shooting that happened there. And second, “individual self-defense is ‘the central component’ of the Second Amendment right,” not an exception to it. {Marijuana use by itself is not an exception either, even if possessing it breaks federal law.}

— Eugene Volokh in Second Amendment Protects Marijuana Users Unless There’s Concrete [Evidence] Showing They’re Dangerous