If it’s legal to smoke weed, and it’s a fundamental constitutional right to keep and bear arms, how is it possible the two combined are illegal per se? The Fifth Circuit in U.S. v. Connelly holds that they’re not, at least sometimes.

Paola Connelly is a non-violent, marijuana smoking gunowner. El Paso police came to her house in response to a “shots fired” call. When they arrived, they saw John, Paola’s husband, standing at their neighbor’s door firing a shotgun. After arresting him, they spoke with Paola, who indicated that she would at times smoke marijuana as a sleep aid and for anxiety. A sweep revealed that the Connellys’ home contained drug paraphernalia and several firearms, including firearms owned by Paola. There was no indication that Paola was intoxicated at the time.

Under 18 U.S.C. § 922, drugs and guns don’t mix. But does smoking marijuana at all mean a person totally forfeits their Second Amendment rights, even when they’re sober? Not according to the Fifth Circuit.

This appeal asks us to consider whether Paola’s Second Amendment rights were infringed, and the answer depends on whether § 922(g)(3) is consistent with our history and tradition of firearms regulation. The short of it is that our history and tradition may support some limits on a presently intoxicated person’s right to carry a weapon (and for that reason Paola’s facial challenges to §§ 922(g)(3) and 922(d)(3) fail), but they do not support disarming a sober person based solely on past substance usage. Nor, contrary to what the government contends, do restrictions on the mentally ill or more generalized traditions of disarming “dangerous” persons apply to nonviolent, occasional drug users when of sound mind. We AFFIRM as to Paola’s as-applied challenge and REVERSE as to her facial challenges.

Rejection of the facial challenge was predicated on the history and tradition of denying lunatics the right to carry arms. But that was limited to those people who were dangerous at the time, whether due to intoxication or mental illness.

But laws designed to disarm the severely mentally ill do not justify depriving those of sound mind of their Second Amendment rights. The analogy stands only if someone is so intoxicated as to be in a state comparable to “lunacy.” Just as there is no historical justification for disarming citizens of sound mind, there is no historical justification for disarming a sober citizen not presently under an impairing influence.

Continuing the comparison between the history and tradition of regulating access of the severely mentally ill to firearms and the regulation of intoxicated individuals’ Second Amendment rights shows that the government’s position is untenable. [Footnote 3 notes that the court makes no ruling regarding mental illness.) The Founders purportedly institutionalized “lunatics” and stripped them of firearms yet allowed alcoholics to carry firearms while sober (and possess them generally).

To the extent this ruling applies to Paola Connelly’s circumstances, it seems too obvious for discussion that her marijuana use bore no inherent connection to her possession of guns when she was sober. She wasn’t a junkie or stone cold alcoholic, who was essentially never sober and thus never capable of safely and responsibly being armed.

And while the court made no ruling with regard to mental illness, per se, the point that even people who suffer from psychological problems are of sufficiently sound mind at times such that their Second Amendment rights shouldn’t be abrogated.

The problem is how would anyone know whether the line was crossed? Where is the line? How high do you have to be? How soon after getting high is a person entitled to exercise her Second Amendment right?  If you leave it to the person on drugs, there is a strong likelihood that they will make a poor decision, that being the nature of doing drugs.

In the instant case, Paola Connelly’s husband, a crackhead, was shooting his neighbor’s door. Such conduct is generally frowned upon. But according to the facts of the case, Paola was sober. Therefore, her possession of arms in her home violated § 922(g)(3) and 922(d)(3). But since she was sober at the time of her arrest, the court held the statute unconstitutional as applied.

But when did she smoke weed, as she admitted, and the guns were still in her home, just as possessed as here, the violation of § 922 would have been just fine? Was this an invitation by the circuit for the cops to raid her house at bedtime when she both smoked pot and possessed guns, when she wasn’t a sober person but the guns didn’t magically disappear from her home?

The crux of the opinion, that there is no rational justification to criminalize the possession of weapons, a fundamental right, just because someone smokes marijuana provided they aren’t doing the latter and former at the same time, makes complete sense. But like so many of the decisions relating to the exercise of Second Amendment rights, it’s rife with inherent contradictions that turn a sensible ruling into an untenable ruling. And like so many of these decisions, the ruling avoids confronting the impossible questions of where the line is drawn and how one would know when the line is crossed.