A Blunt Reality: How § 922(g)(3) of the Gun Control Act Violates the Second Amendment Rights of Marijuana Users

Authors

Christian Z. MacDonald, Southern Methodist University, Dedman School of LawFollow

Abstract

Over 98% of Americans live in a state that has some form of legal marijuana, with over half of Americans having used the drug at least once. The United States also has a strong historical tradition of individual gun ownership for the purposes of self-defense, with gun ownership currently at its highest level in decades. In this modern era of both rising gun ownership and marijuana usage, could it truly be the case that any American who uses cannabinoids forfeits her presumptively protected constitutional right to firearm possession? The answer depends upon whether 18 U.S.C. § 922(g)(3) unconstitutionally infringes on the Second Amendment as applied to locally lawful users of this federally unlawful substance.

The purpose of this article is to examine the constitutionality of § 922(g)(3) as applied to marijuana users through the “historical tradition” test that the Supreme Court established in New York State Rifle & Pistol Association v. Bruen and recently clarified in United States v. Rahimi. This article does so through analysis of the historical record and of federal court cases confronting this question, including the Fifth Circuit’s opinion in United States v. Connelly, which is arguably the most prominent post-Rahimi circuit opinion directly confronting this issue. This article also examines arguments in United States v. Hemani, which—arising out of the Fifth Circuit and bound by Connelly—was recently granted certiorari by the Supreme Court. The logical conclusion of this article’s cogitation of the Second Amendment’s text, history and tradition is that § 922(g)(3) is indeed unconstitutional as applied to marijuana users, and the Supreme Court should adopt the Fifth Circuit’s reasoning and evaluation as outlined in Connelly to hold the law unconstitutional as applied in Hemani and to other marijuana user.

Recommended Citation

Christian Z. MacDonald, A Blunt Reality: How § 922(g)(3) of the Gun Control Act Violates the Second Amendment Rights of Marijuana Users, 78 SMU L. Rev. F. 112 (2025)