| Read Time: 2 minutes | Drug Charges


A Federal Judge in Oklahoma has dismissed an indictment charging a man with possession of a firearm while also in possession of marijuana.  Judge Patrick Wyrick ruled that the law prohibiting marijuana users from possessing firearms was unconstitutional and a violation of the Second Amendment.

Possession of a Firearm While in Possession of Marijuana

This is a big deal.  It is the first Federal Court to interpret the prohibition on being in possession of a firearm and being an illegal marijuana user as unconstitutional.  The Defendant in the case argues that the Second Amendment gives him the right to possess a firearm, and the prohibition on possessing the firearm and being a marijuana user infringes upon that right.  He further argues that the government cannot prove the restrictions are part of the historical laws or traditions of our country.  He relied primarily on the latest ruling by the Supreme Court in New York State Rifle & Pistol Association v. Bruen, 142 S. Ct. 2111 (2022).

Until now being a marijuana user and wanting to preserve your Second Amendment rights was difficult.  Many firearm enthusiasts will forego medical marijuana prescriptions to not be in violation of Federal Law and risk incarceration.  While prosecutions for this conduct is rare, they do occur. 

Think about that for a moment.  The United States currently has 37 states where so use of medical marijuana is legal.  37 states allow a person to go see a physician, the physician diagnosis them with an ailment for which marijuana is the medication.  If that person chooses to fill their prescription, according to the law, that person can be indicated and prosecuted for a felony.  Completely legal conduct, conduct that is deemed medically appropriate, infringe upon a patient’s Second Amendment Constitutional rights. 

The Defendant in the case argued that “neither text nor history and tradition support the notion that only “law abiding” individuals are part of the people protected by the Second Amendment.”  The United States disagreed with the argument and said that the defendant was “not part of “the people” protected by the Second Amendment because he is not “a law-abiding citizen.” This being so, the government argues, the burden never shifts to it to affirmatively prove that restrictions like § 922(g)(3) are part of the historical traditions that define the outer bounds of the right to keep and bear arms. And even if it did, there is a historical tradition of preventing “presumptively risky” people like felons and the mentally ill from possessing firearms, and for purposes of the Second Amendment, concludes the government, marijuana users are no different from those because they are similarly “unvirtuous.”

The Court ultimately ruled that 18 U.S.C. 922(g)(3) violates a person’s Second Amendment right to possess a firearm.  The Court indicated that the government should still play a roll in protecting the public from dangerous people possessing firearms.  Not all restrictions on a person possessing a firearm are violations of the Second Amendment. 

Feel free to read the Judge’s entire order here.

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Andrew Moses

Andrew has been practicing criminal law his entire career. After graduating from law school he began working as an Assistant State Attorney prosecuting cases in Orange and Osceola Counties. During his time as an Assistant State Attorney, Andrew handled all types of cases ranging from misdemeanors to such serious felonies as drug trafficking and armed robbery. His experience as a prosecutor helped him gain perspective of the criminal justice system and how the government established its cases.

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