The long-simmering squabble between the Second Amendment rights of marijuana users and the federal government took another turn Monday, and again, it favors individual freedom.

U.S. District Judge David Briones tossed out the indictment of an El Paso man who was found with several firearms and an ample supply of marijuana in his residence.

The government offered no proof that the defendant was under the influence of marijuana at the time of his arrest. Briones declared that, lacking such evidence, prosecutors had no case against him.

He wrote, “Defendant is part of ‘the people’ whose conduct is covered and protected by the Second Amendment.” Due to the test established by Bruen, the government had the burden of proof to prove that there was precedent in the nation’s historical tradition of firearm regulations to disarm the defendant.

As no such law existed in the Founding Era, the man’s charges were dismissed.

The defendant, Adrian Gil, was arrested in 2021 after law enforcement was called to his home with a report of a fight involving a weapon. While there, authorities found two “large vacuum-sealed” bags of pot and several guns.

According to officers, the suspect confessed to being a daily marijuana user since age 14. He also acknowledged knowing that federal law prevented him from possessing firearms. 

Gil was tried, convicted, and sentenced to 35 months in prison. He appealed on constitutional grounds.

The 5th Circuit covers Texas, Mississippi, and Louisiana, and all three states continue to outlaw recreational marijuana use. The court, however, has consistently decided in favor of users retaining their Second Amendment rights despite the state-level ban.

In his ruling, Judge Briones noted that same history of protecting the right to keep and bear arms for those who recreationally partake in marijuana.

He wrote, “The Fifth Circuit made it clear that history and tradition do not support disarming someone solely based on past drug use.” 

The Founding Fathers used “the people” five times in the Bill of Rights, and Briones noted that in each case, this referred to “all members of our political community, not a special group of upright citizens.”

This verdict is only the most current to expand gun rights in the wake of the U.S. Supreme Court’s 2022 Bruen decision.

A U.S. appeals court ruled in August that a marijuana user in Texas will not face federal prosecution for violating the controversial ban. The 5th Circuit Court of Appeals determined that Paola Connelly’s Second Amendment rights were violated when she was disarmed for her marijuana use.

There is a powerful distinction between being a person under the influence of cannabis and merely in possession. This is similar to laws governing drinking and driving and the difference between simply having alcohol and operating a vehicle while drunk.

The same “political community” reasoning Judge Briones used last week was critical in this prior case.

Judge Kurt Engelhardt wrote for the three-judge panel that the Second Amendment protected Connelly. “Marijuana user or not, Paola is a member of our political community and thus has a presumptive right to bear arms.”

Engelhardt acknowledged that authorities may prohibit firearm possession by someone currently under the influence, but “there is no historical justification for disarming a sober citizen not presently under an impairing influence.”

There are currently 24 states, or almost half the country, where recreational marijuana is now legal. All of these states and 13 more permit the medicinal use of marijuana.

The federal prohibition on gun possession by users, despite the widespread legal acceptance, is an issue that begs for Supreme Court intervention. Otherwise, those who mix marijuana with their Second Amendment rights face a judicial minefield.

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