Florida Commissioner of Agriculture v. Attorney General of the United States

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[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-13893

____________________

FLORIDA COMMISSIONER OF AGRICULTURE,

Plaintiff,

VERA COOPER,

NICOLE HANSELL,

NEILL FRANKLIN,

Plaintiffs-Appellants,

versus

ATTORNEY GENERAL OF THE UNITED STATES,

UNITED STATES OF AMERICA,

DIRECTOR OF BUREAU OF ALCOHOL, TOBACCO,

FIREARMS, AND EXPLOSIVES,

Defendants-Appellees.

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2 Opinion of the Court 22-13893

____________________

Appeal from the United States District Court

for the Northern District of Florida

D.C. Docket No. 4:22-cv-00164-AW-MAF

____________________

Before BRANCH, LUCK, and TJOFLAT, Circuit Judges.

BRANCH, Circuit Judge:

“[W]hen the Government regulates arms-bearing

conduct . . . it bears the burden to justify its regulation.” United

States v. Rahimi, 602 U.S. 680, 691 (2024) (quotations omitted). In

this case, two Florida medical marijuana users who wish to

purchase guns and one gun owner who wishes to participate in

Florida’s medical marijuana program brought a pre-enforcement

action seeking declaratory relief that 18 U.S.C. § 922(d)(3) and

(g)(3), which prohibit unlawful drug users from possessing or being

sold firearms, are unconstitutional as applied to them. The district

court, applying the framework first established in District of

Columbia v. Heller, 554 U.S. 570 (2008), and built on in New York State

Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022), dismissed the

complaint. After assuming that plaintiffs were among “the people”

protected by the Second Amendment, the district court conducted

Bruen’s history-and-tradition test to determine if the challenged

statutes were similar to historical gun regulations. The district

court concluded that the laws and regulations at issue in this case

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22-13893 Opinion of the Court 3

were consistent with this Nation’s historical tradition of firearms

regulation and therefore did not violate the Second Amendment.

After holding oral argument, we held this case in abeyance

pending the Supreme Court’s decision in Rahimi and ordered

supplemental briefing on Rahimi’s effect on this case. After careful

review, we hold that the district court erred in concluding that the

plaintiffs did not state a claim for relief. We reach this conclusion

because, when viewed in the light most favorable to the plaintiffs,

the allegations in the operative complaint do not lead to the

inference that the plaintiffs are comparatively similar to either

felons or dangerous individuals—the two historical analogues the

Federal Government offers in its attempt to meet its burden. We

therefore vacate the district court’s order and remand for further

proceedings consistent with this opinion.

I. Background

Vera Cooper, Nicole Hansell, Neill Franklin, (collectively

“Appellants”) and the Florida Commissioner of Agriculture1

instituted this action in the Northern District of Florida to

challenge the constitutionality of prohibiting medical marijuana

users from purchasing and possessing firearms. Specifically, they

challenged the constitutionality of 18 U.S.C. § 922(d)(3) and (g)(3) 2

1 The Florida Commissioner of Agriculture was dismissed on appeal as a party

in this matter.

2 18 U.S.C. § 922(d)(3) provides:

It shall be unlawful for any person to sell or otherwise dispose

of any firearm or ammunition to any person knowing or

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4 Opinion of the Court 22-13893

as well as the Bureau of Alcohol, Tobacco, Firearms, and

Explosives’s (“ATF”) implementation of these statutes through 27

C.F.R. § 478.11 and Form OMB No. 1140-0020 (also known as ATF

Form 4473, hereinafter “Form 4473”). The challenged statutes and

regulations prohibit “unlawful users”3 of controlled substances

having reasonable cause to believe that such person, including

as a juvenile . . . is an unlawful user of or addicted to any

controlled substance (as defined in section 102 of the

Controlled Substances Act (21 U.S.C. [§] 802))[.]

Section 922(g)(3) provides:

It shall be unlawful for any person . . . who is an unlawful user

of or addicted to any controlled substance (as defined in

section 102 of the Controlled Substances Act (21 U.S.C. [§]

802)) . . . to ship or transport in interstate or foreign commerce,

or possess in or affecting commerce, any firearm or

ammunition; or to receive any firearm or ammunition which

has been shipped or transported in interstate or foreign

commerce.

Section 102 of the Controlled Substances Act defines “controlled

substance” as “a drug or other substance, or immediate precursor, included

in schedule I, II, III, IV, or V of part B of this subchapter” but “does not

include distilled spirits, wine, malt beverages, or tobacco, as those terms

are defined or used in subtitle E of the Internal Revenue Code of 1986.” 21

U.S.C. § 802(6).

3 27 C.F.R. § 478.11 states that “any person who is a current user of a controlled

substance,” including marijuana, is an “[u]nlawful user.” Although § 478.11

does not explicitly define what constitutes a “current user,” it does provide

that:

Such use is not limited to the use of drugs on a particular day,

or within a matter of days or weeks before, but rather that the

unlawful use has occurred recently enough to indicate that the

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from being sold or possessing firearms. Marijuana is one such

controlled substance, and it is currently categorized as a Schedule I

drug. 21 C.F.R. § 1308.11(d)(23). 4 A Schedule I drug is one that (1)

has a high potential for abuse; (2) has no currently accepted medical

use in treatment in the United States; and (3) lacks accepted safety

use under medical supervision. 5 21 U.S.C. § 812(b)(1).

individual is actively engaged in such conduct. A person may

be an unlawful current user of a controlled substance even

though the substance is not being used at the precise time the

person seeks to acquire a firearm or receives or possesses a

firearm. An inference of current use may be drawn from

evidence of a recent use or possession of a controlled substance

or a pattern of use or possession that reasonably covers the

present time, e.g., a conviction for use or possession of a

controlled substance within the past year; multiple arrests for

such offenses within the past 5 years if the most recent arrest

occurred within the past year; or persons found through a drug

test to use a controlled substance unlawfully, provided that the

test was administered within the past year.

Id.

4 21 C.F.R. § 1308.11(d)(23) uses the alternative spelling of “marihuana.” Our

opinion uses the more common spelling, “marijuana.”

5 The Drug Enforcement Agency recently proposed a rule that would

reclassify marijuana as a Schedule III drug. Schedules of Controlled

Substances: Rescheduling of Marijuana, 89 Fed. Reg. 44597-01 (proposed May

21, 2024). Federal law classifies Schedule III controlled drugs as drugs that

(1) have a potential for abuse less than drugs in schedules I and II; (2) have a

currently accepted medical use in treatment in the United States; and (3) abuse

of which may lead to moderate or low physical dependence or high

psychological dependence. 21 U.S.C. § 812(b)(3). Because that proposed

regulation is not yet in effect, it plays no role in our analysis. See infra note 17.

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6 Opinion of the Court 22-13893

The operative First Amended Complaint (“FAC”) alleged

that Franklin is a Florida resident and retired law enforcement

officer who is the lawful owner of a firearm. A physician

determined that Franklin was eligible to use marijuana for medical

purposes under Florida (not federal) law because he had a

qualifying medical condition. He wants to partake in Florida’s

medical marijuana program but will not participate “on the sole

basis that doing so would subject him to” prosecution under the

challenged federal statutes and regulations.

Cooper and Hansell are Florida residents who use medical

marijuana in accordance with Florida (not federal) law, and they

attempted to purchase firearms. In so doing, they were required

to fill out Form 4473, which contains a question asking would-be

purchasers if they are “an unlawful user of, or addicted to,

marijuana . . . or any other controlled substance.” 6 Because

Cooper and Hansell answered this question in the affirmative, the

gun stores denied their purchases. Cooper and Hansell both wish

to purchase a firearm for their personal protection.

Since 2015, Congress has included a budget rider

amendment (commonly referred to as the “Rohrabacher-Farr

Amendment”) in its appropriations bills that precludes the

Department of Justice from using any appropriated funds to

6 The FAC explains that Form 4473 also warns that marijuana use “remains

unlawful under Federal law regardless of whether it has been legalized or

decriminalized for medicinal or recreational purposes in the state where” the

prospective firearm purchaser resides.

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22-13893 Opinion of the Court 7

prevent states from implementing their medical marijuana

programs. According to the FAC, Cooper and Hansell “act in

reliance upon the Rohrabacher-Farr Amendment” and “only

engage in activity they are legally permitted to take and that they

know will not expose them to punishment or liability under state

or federal law.” 7

Notably, the FAC does not contain any allegations regarding

the frequency of Cooper’s and Hansell’s medicinal marijuana use

or the amount of marijuana they consume at any given time. Nor

does it contain any allegations related to what marijuana-related

side effects, if any, Cooper and Hansell experience. The FAC does

not indicate whether they have lost any level of control over their

use of marijuana, or whether marijuana impairs regulation of their

behavior when they are not using. Indeed, all the FAC alleges

regarding their current marijuana use is that they “participate[] in

the state medical marijuana program” because of the “benefits

[they] obtain[] from such medical use” as well as their reliance on

not being criminally prosecuted for their use. In short, nothing in

the FAC indicates that Cooper or Hansell have committed any

felony or been convicted of any crime (felony or misdemeanor), let

7 Under Florida law, medical marijuana patients must comply with several

legal requirements. These include not using marijuana in public, not

cultivating marijuana, purchasing marijuana only through approved channels,

and presenting patient identification to law enforcement on request. See Fla.

Stat. § 381.986(12)(c), (d), & (e).

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8 Opinion of the Court 22-13893

alone that their medical marijuana use makes them dangerous. But

see infra note 16.

The FAC brought four counts against the Attorney General

of the United States and the ATF Director (hereinafter the “Federal

Government”). Counts I and II brought claims for declaratory and

injunctive relief that the challenged statutes and regulations violate

the Second Amendment as applied to Cooper, Hansell, Franklin,

and other Florida medical marijuana users. 8 Counts III and IV also

brought claims for declaratory and injunctive relief that the

prosecution of Cooper, Hansell, Franklin, or any other medical

marijuana user would violate the Rohrabacher-Farr Amendment.

The Federal Government moved to dismiss the FAC,

arguing inter alia that Counts I and II fail as a matter of law because

the challenged statutes and regulations are constitutional as applied

to all unlawful users of a controlled substance, and because the

FAC failed to state a claim with respect to Counts III and IV, the

Rohrabacher-Farr Amendment claims.9

8 “In an as-applied challenge, a plaintiff seeks to vindicate only her own

constitutional rights.” McGuire v. Marshall, 50 F.4th 986, 1003 (11th Cir. 2022).

“In evaluating an as-applied challenge, [we] address[] whether a statute is

unconstitutional on the facts of a particular case or in its application to a

particular party.” Id. (quotation omitted).

9 The Federal Government also argued that Hansell and Cooper were the only

plaintiffs with Article III standing in this case and that their standing was

limited to Counts I and II—the Second Amendment claims—only. Because

Counts I and II are the only claims before us on appeal, and because the district

court correctly concluded that Hansell and Cooper have Article III standing,

we do not elaborate on this issue. See Babbitt v. United Farm Workers Nat’l

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22-13893 Opinion of the Court 9

The district court granted the Federal Government’s motion

to dismiss. In doing so, it declined to decide whether—based on

the Supreme Court’s reference in Heller to “law-abiding,

responsible citizens” enjoying Second Amendment rights, 554 U.S.

at 635—medical marijuana users fell outside of the scope of the

Second Amendment because they were not “law-abiding” citizens.

Instead, assuming that medical marijuana users were “included in

‘the people’ the Second Amendment protects,” the district court

proceeded to analyze whether laws precluding medical marijuana

users from possessing firearms were consistent with this Nation’s

historical tradition. Applying analogous reasoning as employed in

Bruen, the district court determined that prohibiting medical

marijuana users from possessing firearms was consistent with the

Nation’s historical tradition of keeping guns out of the hands of

individuals who (1) engage in criminal conduct; and (2) are deemed

dangerous, like alcoholics and the mentally ill—the two historical

analogues offered by the Federal Government. 10 Accordingly, the

district court found that the challenged statutes and regulations as

applied to medical marijuana users did not violate the Second

Union, 442 U.S. 289, 298 (1979) (“When contesting the constitutionality of a

criminal statute, it is not necessary that the plaintiff first expose himself to

actual arrest or prosecution to be entitled to challenge the statute that he

claims deters the exercise of his constitutional rights.” (alterations adopted)

(quotations omitted)).

10 In discussing the historical analogue of keeping drugs out of the hands of

dangerous individuals, the district court equated medical marijuana users with

“habitual drug users.”

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Amendment, and it dismissed Counts I and II of the FAC.11

Plaintiffs timely appealed.

II. Standard of Review

“We review de novo the district court’s grant of a

Rule 12(b)(6) motion to dismiss for failure to state a claim,

accepting the complaint’s allegations as true and construing them

in the light most favorable to the plaintiff.” Chaparro v. Carnival

Corp., 693 F.3d 1333, 1335 (11th Cir. 2012) (quotations omitted). In

this case, that review involves considering the constitutionality of

a statute, which we also consider de novo. United States v. Jimenez-

Shilon, 34 F.4th 1042, 1043 (11th Cir. 2022).

III. Discussion

On appeal, Appellants argue that the district court erred by

concluding that they had not stated a claim that the challenged

statutes and regulations violate their Second Amendment rights.

Appellants assert that the district court should not have accepted

the Federal Government’s offered analogues because nothing in

the FAC indicates they are engaging in felonious conduct and they

cannot fairly be labeled as dangerous individuals based solely on

their general use of marijuana for medicinal purposes.

Accordingly, they argue that the Federal Government has not met

its “burden of showing that disarming state-law compliant medical

11 The district court also dismissed Counts III and IV for failing to state a claim,

but as discussed in note 9, plaintiffs do not appeal the dismissal of these counts.

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marijuana users comports with the history and tradition of the

Second Amendment” at the motion to dismiss stage.

Upon review, we find that the district court erred in granting

the Federal Government’s motion to dismiss because it did not

view the FAC’s allegations in the light most favorable to

Appellants. When viewed in this light, Appellants cannot be fairly

compared with felons or those the government deems dangerous.

Thus, the government failed to meet its burden—at the motion to

dismiss stage—to establish that disarming medical marijuana users

is consistent with this Nation’s history and tradition of firearm

regulation.

A. Second Amendment Framework

We begin our analysis by laying out the applicable legal

framework for assessing Second Amendment challenges.

The Second Amendment provides: “A well regulated

Militia, being necessary to the security of a free State, the right of

the people to keep and bear Arms, shall not be infringed.” U.S.

Const. amend. II. In a groundbreaking decision striking down a

D.C. law that prohibited private possession of handguns, the

Supreme Court in Heller noted that there is “a strong presumption

that the Second Amendment right . . . belongs to all Americans.”

554 U.S. at 581. The Court held “on the basis of both text and

history, that the Second Amendment conferred an individual right

to keep and bear arms.” Id. at 595. But Heller left many questions

unanswered. Indeed, Heller recognized that it did not “clarify the

entire field” while nevertheless guaranteeing the right for “law-

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abiding, responsible citizens.” Id. at 635. Heller emphasized,

however, that “[l]ike most rights, the right secured by the Second

Amendment is not unlimited.” Id. at 626. And as relevant to our

instant case, Heller noted that “nothing in [its] opinion should be

taken to cast doubt on longstanding prohibitions on the possession

of firearms by felons and the mentally ill.” Id.

Following Heller, the courts of appeals coalesced around a

two-step test for Second Amendment challenges. Bruen, 597 U.S.

at 18. First, courts determined whether the law at issue regulated

activity within the scope of the Second Amendment’s original

historical meaning. Second, if it did, courts applied means-end

scrutiny to test the law’s validity at the second step. Id. at 19.

Later, in Bruen, the Supreme Court scrapped the means-end

scrutiny test and explained that, under Heller, a historical inquiry

governs Second Amendment challenges. Id. Accordingly, the

Supreme Court adopted a different two-part test from that which

the circuits were applying. First, courts must determine whether

“the Second Amendment’s plain text covers an individual’s

conduct.” Id. at 24. That “textual analysis focuse[s] on the normal

and ordinary meaning of the Second Amendment’s language.” Id.

at 20 (quotations omitted). And the normal and ordinary meaning

of the Second Amendment “guarantee[s] the individual right to

possess and carry weapons in case of confrontation” because “the

right to ‘bear arms’ refers to the right to ‘wear, bear, or carry . . .

upon the person or in the clothing or in a pocket, for the

purpose . . . of being armed and ready for offensive or defensive

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action in a case of conflict with another person.’” Id. at 32 (ellipses

in original) (quoting Heller, 554 U.S. at 584). If an individual’s

conduct is covered by the Second Amendment, then “the

Constitution presumptively protects that conduct.” Id. at 24.

At the second step, the Government is required to “justify

its regulation by demonstrating that it is consistent with the

Nation’s historical tradition of firearm regulation.” Id. Bruen

explained that in some cases this historical inquiry “will be fairly

straightforward.” Id. at 26. For example, “when a challenged

regulation addresses a general societal problem that has persisted

since the 18th century, the lack of a distinctly similar historical

regulation addressing that problem is relevant evidence that the

challenged regulation is inconsistent with the Second

Amendment.” Id. Similarly, “if earlier generations addressed the

societal problem, but did so through materially different means,

that also could be evidence that [the] modern regulation is

unconstitutional.” Id. at 26–27. But when courts are confronted

with laws and regulations that implicate “unprecedented societal

concerns or dramatic technological changes,” the “historical

inquiry that courts must conduct will often involve reasoning by

analogy.” Id. at 27–28. This analogical reasoning “requires a

determination of whether the two regulations are relevantly

similar.” Id. at 29 (quotations omitted).

In determining whether two regulations are relevantly

similar, Bruen held that courts should assess “how and why the

regulations burden a law-abiding citizen’s right to armed self-

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14 Opinion of the Court 22-13893

defense.” Id. (emphasis added). “Therefore, whether modern and

historical regulations impose a comparable burden on the right of

armed self-defense and whether that burden is comparably justified

are central considerations when engaging in an analogical inquiry.”

Id. (quotations and emphasis omitted). However, this reasoning

“is neither a regulatory straightjacket nor a regulatory blank

check.” Id. at 30. Courts must be careful to not “uphold every

modern law that remotely resembles a historical analogue, because

doing so risks endorsing outliers that our ancestors would never

have accepted.” Id. (alteration adopted) (quotations omitted). “On

the other hand, analogical reasoning requires only that the

government identify a well-established and representative

historical analogue, not a historical twin.” Id. (italics in original).

Thus, a modern-day regulation need not be a “dead ringer for

historical precursors” to pass constitutional muster. Id.

Most recently in Rahimi, the Supreme Court reaffirmed the

test it adopted in Bruen but provided some clarification that while

the government “bears the burden to justify its regulation,” some

courts have “misunderstood the methodology of [its] recent

Second Amendment cases.” 602 U.S. at 691 (quotation omitted).

Rahimi emphasized that Bruen and its predecessors “were not

meant to suggest a [regulatory] law trapped in amber” and that

“the Second Amendment permits more than just those regulations

identical to ones that could be found in 1791.” Id. at 691–92.

Accordingly, the Court reemphasized that “[w]hy and how the

regulation burdens the [Second Amendment] right are central to [a

court’s] inquiry.” Id. at 692 (emphasis added).

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With the above framework in mind, we now apply the steps

required by Bruen (as clarified by Rahimi) to the instant case.

B. Application of the Framework

1. Step One of the Bruen Framework

Bruen’s first step requires us to determine whether “the

Second Amendment’s plain text covers [Cooper’s and Hansell’s]

conduct.” 12 Bruen, 597 U.S. at 17. The Supreme Court has said this

text “guarantee[s] the individual right to possess and carry weapons

in case of confrontation.” Id. at 32 (quoting Heller, 554 U.S. at 592).

Accordingly, we determine that Cooper’s and Hansell’s conduct of

attempting to purchase and possess firearms for self-defense

purposes is clearly covered by the Second Amendment’s plain text.

The Federal Government does not argue that Cooper’s and

Hansell’s conduct is not covered by the plain text of the Second

12 We note that according to the FAC, Cooper and Hansell are the only

Appellants who are currently unlawful users of marijuana, whereas Franklin

is a gun owner who wants to participate in Florida’s medical marijuana

program. Because the Federal Government’s offered historical analogues

focus on “unlawful drug use” and the effects such use has on a user’s criminal

status and mental state, our discussion likewise focuses on Cooper’s and

Hansell’s alleged conduct.

Similarly, throughout this opinion, our discussion focuses on the

constitutionality of 18 U.S.C. § 922(g)(3), which prohibits unlawful users of

controlled substances from possessing firearms. But our analysis applies with

equal force to 18 U.S.C. § 922(d)(3), which prohibits sales of firearms to

unlawful users of controlled substances, and all implementing regulations for

both statutes, which disarm plaintiffs because of their marijuana use.

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Amendment. Instead, it appears to argue that Cooper and Hansell

are not among “the people” protected by the Second Amendment

because their use of medical marijuana violates federal law. This

illegal use of marijuana, the Federal Government asserts, makes

Cooper and Hansell akin to felons because through their use they

have shown they are not “law-abiding, responsible citizens,” and

felons have historically been excluded from the right to bear arms.

See United States v. Dubois, 139 F.4th 887, 890–94 (11th Cir. 2025)

(reaffirming the constitutionality of 18 U.S.C. § 922(g)(1), which

prohibits convicted felons from possessing firearms).

The district court declined to decide whether Cooper’s and

Hansell’s use of medical marijuana excluded them from “the

people” who fall within the Second Amendment’s protection.

Instead, the district court assumed that “the people” includes

Cooper and Hansell. We, however, reject the Federal

Government’s argument for two reasons. First, while there is a

history and tradition in this Nation of disarming convicted felons,

nothing in the FAC indicates that Cooper and Hansell have ever

been convicted of any crime, let alone a felony. Nor are there any

allegations that they are engaging in felonious conduct. The only

crime that the FAC plausibly alleges Cooper and Hansell have

committed at this stage is simple possession of a controlled

substance, which is a misdemeanor. 13 The parties do not cite, and

13 The Controlled Substances Act provides that a first-time offender convicted

of possession of a controlled substance “may be sentenced to a term of

imprisonment of not more than 1 year.” 21 U.S.C. § 844(a). And federal law

defines “felony” as “an offense punishable by a maximum term of

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we are not aware of, any authority for the proposition that

misdemeanants are not among the people who enjoy the right to

bear arms as protected by the Second Amendment. We decline to

hold so now.14

Second, following Rahimi, we reject the Federal

Government’s argument that Cooper and Hansell are not among

“the people” because they are not “law-abiding” or “responsible.”

In Rahimi, the Supreme Court explicitly “reject[ed] the

Government’s contention that Rahimi may be disarmed simply

because he [was] not ‘responsible.’” Rahimi, 602 U.S. at 701. In

doing so, the Court explained that “‘[r]esponsible’ is a vague term”

and that it was “unclear what such a rule would entail.” Id. Rahimi

imprisonment of more than one year.” 18 U.S.C. § 3156(a)(3). Moreover,

under Florida law, a person who possesses marijuana according to the state’s

medical marijuana laws cannot be criminally prosecuted under Florida’s other

controlled substances laws. See Fla. Stat. § 381.986(14). Accordingly, based on

the allegations in the FAC, Cooper and Hansell are at most committing a

federal misdemeanor when they possess marijuana.

14 Indeed, in Kanter v. Barr, then-Judge Barrett observed that when considering

constitutional rights, courts typically do not consider whether some

individuals categorically fall inside or outside the scope of a particular right.

See Kanter v. Barr, 919 F.3d 437, 451–53 (7th Cir. 2019) (Barrett, J., dissenting).

Instead, “the deprivation [of a right] occurs because of state action, and state

action determines the scope of the loss (subject, of course, to any applicable

constitutional constraints).” Id. at 452–53. A “state can disarm certain

people . . . but if it refrains from doing so, their rights remain constitutionally

protected. In other words, a person convicted of a qualifying crime does not

automatically lose his right to keep and bear arms but instead becomes eligible

to lose it.” Id. at 453.

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18 Opinion of the Court 22-13893

clarified that Heller’s and Bruen’s use of the term “responsible” was

simply “to describe the class of ordinary citizens who undoubtedly

enjoy the Second Amendment right” and “said nothing about the

status of citizens who were not ‘responsible.’” Id. at 701–02; see also

id. at 772–73 (Thomas, J., dissenting) (noting that “[n]ot a single

Member of the Court adopt[ed] the Government’s theory” that

Congress could “disarm anyone who is not ‘responsible’ and ‘law-

abiding’”). Accordingly, at the first step of the Bruen framework,

we conclude that the Second Amendment’s plain text covers

Cooper and Hansell and their conduct. See Bruen, 597 U.S. at 17.

2. Step Two of the Bruen Framework

We next turn to the second step of the Bruen framework,

determining whether the Federal Government has “justif[ied] its

regulation by demonstrating that it is consistent with the Nation’s

historical tradition of firearm regulation.” Bruen, 597 U.S. at 24.

The district court determined that the Federal Government had

met its burden because disarming unlawful users of a controlled

substance, including medical marijuana users, was analogous to

regulations disarming: (1) “those engaged in criminal activity”; and

(2) “those whose status or behavior would make it dangerous for

them to possess firearms” like the mentally ill, drug addicts,

alcoholics, and the intoxicated.

Appellants argue the district court’s determination was in

error because, based on the allegations in the FAC, they cannot be

considered relevantly similar to either felons who have historically

been disarmed or people who present a special danger. The

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Federal Government argues that the district court correctly

determined it had met its burden because in its view, all unlawful

drug users—regardless of the substance they use or the manner in

which they use it—are comparable to those who (1) engage in

criminal conduct; and (2) are dangerous as a class. Upon review,

we agree with Appellants.

We begin our step two inquiry by examining the Federal

Government’s first offered historical analogue, the Nation’s history

and tradition of disarming “those engaged in criminal conduct.”

Rehashing its argument from step one, the Federal Government

asserts that Cooper and Hansell have failed to refute the analogy

between laws disarming convicted felons and the challenged

statutes and regulations that disarm unlawful drug users. This

historical analogue, however, does not share the same “how”—

that is, the “burden on the right of armed self-defense”—as 18

U.S.C. § 922(g)(3) applied to Cooper and Hansell, for two reasons.

Bruen, 597 U.S. at 29.

First, as discussed above, at most the FAC alleges that

Cooper and Hansell are committing a misdemeanor, not a felony,

by using marijuana for medicinal purposes. The Federal

Government has not pointed to any historical tradition of

disarming those engaged in misdemeanant conduct. Because 18

U.S.C. § 922(g)(3) applied to Cooper and Hansell disarms people

who are not felons, the statute “regulates arms-bearing . . . to an

extent beyond what was done at the founding,” which

demonstrates that 18 U.S.C. § 922(g)(3) is “not . . . compatible with

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20 Opinion of the Court 22-13893

the [Second Amendment] right” in this case. Rahimi, 602 U.S. at

692.

Second, felon dispossession laws require an individual to be

convicted of a felony before they lose their Second Amendment

right. But the FAC does not allege Cooper or Hansell have been

convicted of any crime, felony or misdemeanor. The manner in

which felon dispossession laws operate to strip individuals of their

Second Amendment right—following a judicial determination as

to their guilt in committing a felony—is starkly different from how

the challenged statutes and regulations apply to Cooper and

Hansell, two individuals who have never faced a judicial

determination of guilt for any crime. Put another way, because

Cooper and Hansell have never faced a judicial determination of

guilt for any crime, they would not have been disarmed under the

government’s first offered historical analogue—but they are

disarmed by 18 U.S.C. § 922(g)(3). Thus, 18 U.S.C. § 922(g)(3), as

applied to Cooper and Hansell, imposes a greater “burden on the

right of armed self-defense” than the Federal Government’s first

historical analogue, not one that is “comparable.” Bruen, 597 U.S.

at 29.

Accordingly, we determine that based on the allegations in

the FAC, Cooper and Hansell are not relevantly similar to felons

who have historically been disarmed. See id.; Rahimi, 602 U.S. at

692. Thus, we reject the Federal Government’s first offered

analogue at the motion to dismiss stage.

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The Federal Government’s second analogue is that the

Nation has a long history and tradition of disarming individuals it

fairly deems as dangerous, including the mentally ill, drug addicts,

alcoholics, and the intoxicated. It argues that Rahimi makes clear

that Congress may disarm those who pose a real danger to the

public and that, as unlawful users of a controlled substance,

medical marijuana users fit firmly within this category of

dangerous individuals because they may mishandle firearms,

commit crimes to obtain drugs, or even engage in violent crime as

part of the illegal drug trade. Accordingly, it asserts that the

challenged laws and regulations “bear[] at least as close a

resemblance to the historical laws as the modern prohibition that

Rahimi upheld” and that we should therefore uphold the district

court’s determination that these laws are constitutional as applied

to all medical marijuana users. But the Federal Government has

again failed to meet its burden at this point in the litigation to show

that its “dangerousness” analogue imposes a comparable burden

on the Second Amendment right—the same “how”—as 18 U.S.C.

§ 922(g)(3) applied to Cooper and Hansell: based on the allegations

in the FAC, Cooper and Hansell cannot fairly be labeled as

dangerous people solely due to their medicinal marijuana use. See

Rahimi, 602 U.S. at 692 (“Why and how the regulation burdens the

[Second Amendment] right are central to this inquiry.” (emphasis

added)).

As discussed above, the FAC contains no allegations

regarding either the frequency of use or effects that consumption

of marijuana has on Cooper and Hansell—or other medical

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22 Opinion of the Court 22-13893

marijuana users. The FAC’s only allegation about the nature of

Cooper’s and Hansell’s use is that they use marijuana only as

permitted by Florida law. And while the district court labeled them

as “habitual drug users,” presumably akin to addicts, the FAC says

no such thing, stating simply that Cooper and Hansell use

marijuana for the medical benefits they receive and in reliance on

the fact that they will not be criminally prosecuted for their

medicinal use. Viewing these allegations in the light most

favorable to Cooper and Hansell, it appears they use rational

thought in making their decision to use marijuana and would stop

their marijuana use if they were placed at risk of criminal

prosecution. Accordingly, Cooper’s and Hansell’s mental state is a

far cry from that of addicts and alcoholics whose actions are

controlled by their need to use alcohol or drugs. See United States

v. Yancey, 621 F.3d 681, 682, 685 (7th Cir. 2010) (affirming the

constitutionality of 18 U.S.C. § 922(g)(3) as applied to a criminal

defendant who “had been smoking marijuana daily” for two years,

reasoning that “habitual drug users” like the defendant were “more

likely to have difficulty exercising self-control”).

Similarly, the Federal Government’s argument that medical

marijuana users pose a risk of committing violent crimes to obtain

marijuana finds no support in the FAC. True, federal law prohibits

using or carrying a firearm “during and in relation to any crime of

violence or drug trafficking crime.” 18 U.S.C. § 924(c). And “[o]ur

tradition of firearm regulation allows the Government to disarm

individuals who present a credible threat to the physical safety of

others.” Rahimi, 602 U.S. at 700. But this tradition “distinguishes

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22-13893 Opinion of the Court 23

citizens who have been found to pose a credible threat . . . from

those who have not.” Id. Nothing in the FAC indicates that

Cooper and Hansell are engaged in any drug market aside from the

Florida medical marijuana market, which is highly regulated and

requires dispensaries to comply with State law as enforced by the

Florida Department of Agriculture and Consumer Services. See

Fla. Stat. § 381.986. Nor is there any indication in the FAC that

Cooper and Hansell “pose a credible threat” to the public safety of

others based solely on their use of medical marijuana. See Rahimi,

602 U.S. at 700.

Accordingly, we determine that the factual allegations,

construed in the light most favorable to Cooper and Hansell, do

not lead to an inference that they, because they are medical-

marijuana users, can fairly be labeled as dangerous. Our

determination means that Cooper and Hansell would not be

disarmed under the Federal Government’s second offered

historical analogue, but they are disarmed by 18 U.S.C. § 922(g)(3).

Thus, because 18 U.S.C. § 922(g)(3), as applied to Cooper and

Hansell, imposes a greater burden on the Second Amendment

right than the Federal Government’s second offered analogue, we

reject the analogue at the motion to dismiss stage. See Bruen, 597

U.S. at 29 (“[W]hether modern and historical regulations impose a

comparable burden on the right of armed self-defense and whether that

burden is comparably justified are central considerations when

engaging in an analogical inquiry.” (first emphasis added, second

emphasis in original) (quotation omitted)).

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24 Opinion of the Court 22-13893

Because both of the Federal Government’s historical

analogues fail at the motion to dismiss stage, we conclude it has

failed to meet its burden of establishing that the challenged laws

and regulations as applied to medical marijuana users are

consistent with this Nation’s history and tradition of firearm

regulation. Thus, the Appellants have plausibly alleged that the

challenged statutes and regulations violate the Second Amendment

as applied to them. 15

Our conclusion comports with sister circuit precedent. See

United States v. Connelly, 117 F.4th 269, 272 (5th Cir. 2024). In

Connelly, the Fifth Circuit considered whether 18 U.S.C. § 922(g)(3)

was constitutional as applied to a “non-violent, marijuana smoking

gunowner.” Id. The Fifth Circuit held that the defendant’s

Ҥ 922(g)(3) charge is inconsistent with our history and tradition of

firearms regulations.” Id. at 283. In so holding, the Fifth Circuit

held that the defendant “is a member of our political community

and thus has a presumptive right to bear arms.” Id. at 274. The

Fifth Circuit then rejected the Federal Government’s analogies

between 18 U.S.C. § 922(g)(3) as applied to the defendant and laws

15 Recall that Appellants are bringing an as-applied challenge to the

constitutionality of the challenged statutes and regulations. And “because a

factual, as-applied challenge asserts that a statute cannot be constitutionally

applied in particular circumstances, it necessarily requires the development of

a factual record for the court to consider.” Schultz v. Alabama, 42 F.4th 1298,

1319 (11th Cir. 2022) (quotations omitted). “This is because an as-applied

challenge addresses whether a statute is unconstitutional on the facts of a

particular case or to a particular party.” Id. (quotations omitted).

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that disarmed mentally ill, dangerous, or intoxicated individuals.

Id. at 274–82. So do we. Accordingly, we join the Fifth Circuit and

vacate and remand this case. See also United States v. VanOchten, ___

F.4th ___, 2025 WL 2268042, at *6–8 (6th Cir. Aug. 8, 2025)

(holding that 18 U.S.C. § 922(g)(3) can be constitutionally applied

to “dangerous individuals” and leaving open the opportunity for

“drug users” to “prove that they are not actually dangerous” in

future cases); United States v. Harris, 144 F.4th 154, 164–65 (3d Cir.

2025) (holding that 18 U.S.C. § 922(g)(3) “constitutionally restricts

the gun rights of drug users only as long as they present a special danger

of misusing firearms” and remanding for more fact-finding (emphasis

added) (quotation omitted)); United States v. Cooper, 127 F.4th 1092,

1096 (8th Cir. 2025) (holding that a prosecution under 18 U.S.C.

§ 922(g)(3) violates the defendant’s Second Amendment rights

unless the defendant “act[ed] like someone who is both mentally ill

and dangerous,” “induce[d] terror,” or “pose[d] a credible threat to

the physical safety of others with a firearm” and remanding for

further fact-finding (quotations omitted)).

IV. Conclusion

Based on Appellants’ factual allegations, Appellants cannot

be considered relevantly similar to either felons or dangerous

individuals based solely on their medical marijuana use.

Accordingly, the Federal Government has failed, at the motion to

dismiss stage, to establish that disarming Appellants is consistent

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26 Opinion of the Court 22-13893

with this Nation’s history and tradition of firearm regulation.16

Thus, we vacate the district court’s order and remand for further

proceedings consistent with this opinion.

VACATED AND REMANDED.17

16 The Federal Government very well may prove at a later stage of litigation,

after development of a factual record, that Appellants can fairly be considered

relevantly similar to felons or dangerous individuals who can categorically be

disarmed. Indeed, as Appellants concede on appeal (but, as discussed, not in

the FAC), they may be fairly deemed as dangerous during the times they are

high and thus have limitations placed on their right to use firearms while in

such a mental state. See Rahimi, 602 U.S. at 691 (“At the founding, the bearing

of arms was subject to regulations ranging from rules about firearm storage to

restrictions on gun use by drunken New Year’s Eve revelers.”). But at the

current stage of litigation, it cannot be determined whether they use

marijuana to such an extent that it has a continuous effect on their

psychological and physical well-being.

17 If the Drug Enforcement Agency’s proposed rule reclassifying marijuana as

a Schedule III controlled substance is finalized, see supra note 5, the district

court should determine what effect that final rule has on its Article III

jurisdiction.