by Gilbert Ambler
Hi, I am firearms attorney Gilbert Ambler, and today we're going to talk about a Fifth Circuit ruling. It was a good ruling. It was not a great ruling, but it was a good ruling involving whether people that use marijuana can constitutionally be prohibited from possessing firearms. And we're going to talk about this subject and why it was a good but not great ruling, but more importantly, we're going to talk about the slippery slope that the government started to approach, which was whether those that drink alcohol regularly could be prohibited from possessing firearms. We're going to talk about that in just a second, but if you have not yet hit that subscribe button, what are you waiting for? We are almost to 10,000 subscribers, so help get us to 10,000 subscribers. Hit the subscribe button, like comment with your thoughts, share with your friends. Share it on your social media.
That way you and your friends can keep getting this important Second Amendment related content. The case we're talking about is United States versus Paola Fifth Circuit case and kind of a procedurally interesting case. The facts in this case involved El Paso police responding to a shots fired call, and when they showed up on scene, they encountered a man named John wielding a shotgun. He was taken into custody. They then questioned John's spouse and John's spouse. Paula told police that yes, if you searched the house, you are going to find some drugs. You're going to find more specifically some marijuana because I occasionally use marijuana to help me with my anxiety and to help me sleep when I can't sleep. Police subsequently searched the house. They did indeed find marijuana. They also found a handgun that Ms. Paola had recently obtained, and what they did was they charged her under federal law with being someone who is a habitual user or addicted to a controlled substance in possession of a handgun under 18 USC 9 22 G three.
Now, Ms. Paola challenged this conviction and she challenged it prior to the Rahimi case being decided under the Bruin standard, and ironically, the district court rejected her challenge. Once Rahimi came out, though, Ms. Paola rechallenged her conviction, and this time what she said is Rahimi said it's constitutional to prohibit dangerous people from possessing firearms. I am not a dangerous person. I use marijuana to help me sleep. At times I'm not dangerous, and therefore this is both facially unconstitutional, meaning this law should never be upheld and it's unconstitutional as applied to me. When you look at how this law is being applied to me individually under these facts, it's unconstitutional. The district court accepted both arguments. The Fifth Circuit took the case, and when they took the case, they overturned the facial striking down of 18 USC 9 22 G three. They said there are some applications where the ban on those who use unlawful drugs like marijuana can be upheld.
However, as applied in this case, they found it to be unconstitutional. And here's where they seemingly drew their distinction. They said, look, if you are actively under the influence, if you're high, then that might support a finding of dangerousness, and there might be a historical tradition showing that if you were actually under the influence, firearms could be taken from you. But the founding fathers certainly didn't take firearms away from people who sometimes drank when they were sober. And what they said was, look, this is a very slippery slope that the government is approaching because if the government is contending that because you're under the influence, sometimes you are dangerous enough that firearms can be restricted from you at all times, then that could lead to a conclusion where the government could contend that someone who drinks a couple of beers a couple of nights a week could be lawfully prohibited from possessing firearms.
And of course, I find that very concerning. I'm sure you find that very concerning. One of the reasons I find that very concerning is because if the government thinks they could get away with something, they're probably going to try to get away with something. So I like that the Fifth Circuit headed that off early. What I don't like is I don't like that they didn't grant the facial challenge because in my opinion, and the court talks about this, they said, Hey, the founders would disarm certain groups like people that weren't politically loyal, but they tended not to disarm people that used intoxicating substances in a widespread manner. So I think that it should have been facially struck down as unconstitutional because I think the decision here leaves a lot to be desired. And unfortunately, what this does is it continues to lead people that might use marijuana or desire to use marijuana to help manage pain symptoms or to help them sleep.
It leaves them in a state of uncertainty because if they use marijuana, it's still a facially constitutional law. They can be arrested, they can be forced to be prosecuted, go through the trial process and try to exonerate themselves at trial. And of course, in that way, the process is the penalty. No one wants to be arrested and go through that. So what that does is it leaves people that want to use marijuana probably ineligible to possess firearms still because the uncertainty involved with the as applied situation makes this all very difficult. The second thing it does is the fifth Circuit suggested, well, maybe you can be disarmed while you're actually high, is it leaves us with a very, very unclear standard here because we have to consider all the cases that talk about constructive possession. Essentially, these cases say, if you have the ability to control something, even if you're not physically holding it, it's in your possession.
What does that mean? It means, let's say you lock up your firearms in your gun safe because you're going to go get high, you're going to smoke. You're probably still in possession of the firearms, even though you're not literally hanging onto them and could probably still be convicted in the fifth Circuit because they say, Hey, the guns are in your possession and you are actively under the influence. And so I find that very problematic, and I'm trying to hypothetically in my mind, come up with a way around this. If you were going to get high, could you get a safe that had a timer on it that you could put your firearms in and it wouldn't release until after you sobered up? Maybe that would get you around this. At the end of the day, this is a very, very, this as applied nature of this, makes this a very difficult case for people to effectively use to defend themselves, or at least to keep themselves proactively, preemptively out of trouble by knowing that what they're doing is lawful. If you enjoyed this content, hit that subscribe button for us. Until next time.
YouTube Video Link: https://www.youtube.com/watch?v=RNfdhIF-GqE
Credit: Gilbert Ambler, Esq The Commonwealth's Gun Rights