A Gun Law Gone to Pot
One Man’s Quest to Decriminalize Legal Acts
Hello and welcome to From the Dockets AZ.
People have always loved a good courtroom drama whether it’s real or fiction. Audiences have sat rapt for verdicts and the words of lawyers since Pontius Pilate polled the rabid crowd and Shakespeare’s moneylender demanded a pound of flesh. Johnny Cochran sprang a killer with “If it doesn’t fit, you must acquit” and the line rings on today as a masterful piece of oratory. Even Joe Pesci and Fred Gwynn — famous for his role as Herman Munster — got in on the act just for laughs when they argued about the proper way to pronounce youths as two “utes” stood trial for murder.
In a Norman Rockwell world, court is where we go to solve our conflicts in a civil and orderly way so justice will prevail. Ha! There are rules and order for sure, but there’s also human nature, which is why there’s a conflict in the first place and why it can also be messy and so riveting like the examples above. This is where From the Dockets AZ comes in. I’ll tell you the stories of people and their conflicts in Arizona’s courts, shed some light on the pursuit of justice, and take us occasionally to the political side of the bench and justice system.
My hope is to produce a constant stream of compelling court-based stories from Arizona that are a must read. You’ll get some true crime and you’ll see where people wronged each other on the civil side, but we’ll go beyond the case files and bring you the human condition. At some point I’m going to start asking you to pay for a subscription and hopefully you’ll find the value in what I’m producing. Today’s offering is about a retired lawyer who wants to buy a gun but he can’t because he occasionally smokes a little pot. A friend told me this story truly embodies Arizona. I also plan to deliver some stories soon about people who had to sue the government to get out of jail while they pursued due process in immigration court. And much more.
Thank you, if you’re still with me. And without further adieu, here’s the first edition of From the Dockets AZ.
Bill Weinstein wants to occasionally smoke some pot and own a gun.
However, the 71-year-old retired Tucson lawyer can do only one or the other legally.
That’s why Weinstein sued U.S. Attorney General Pam Bondi last year. He wants to stop her from enforcing a statute that prevents him from doing both legally. He also weighed in recently in a U.S. Supreme Court case on that very law.
Representing himself, Weinstein asserts the federal government violates his constitutional rights in several ways by continuing to outlaw the use and possession of marijuana while it is legal in one form or another in Arizona and 47 other states. He also takes offense to the federal government stigmatizing him as a criminal when he’s a law abiding citizen and a lawyer in good standing.
“I mean, everybody who uses (it) is being criminalized by the federal government. And so the question is, who gets to criminalize me? I don’t want to be a criminal. I want to establish that I’m not a criminal,” Weinstein said.
He learned while researching his lawsuit that the occasional puff he takes disqualified him from owning a gun, one of the things he wanted to do when he retired in Tucson in 2021.
“It never occurred to me when I moved here thinking that I could buy a gun I was going to be forbidden from it for intermittent use of marijuana,” Weinstein said.
A court victory on the Second Amendment claim could mean tens of millions of pot smokers can legally own a firearm. A 2024 Gallup Consumption Habits poll found 15% of Americans reported smoking pot, and 68% of Americans reported support for its legalization.
Weinstein breaks it down even more. He says in his complaint that only 4.9 million people, or 1.5% of the U.S. population live in states where marijuana is completely illegal, meaning 98.5% of U.S. residents live in states where it is legal either for adult or medical use.
“The states have rejected the concept that it’s dangerous. Right now they have in 48 states, 97% of the people have rejected the concept statutorily, that it’s dangerous, that you can’t consume it safely, that you can’t consume it responsibly,” Weinstein said.
The final word will rest with the U.S. Supreme Court. It is scheduled to hear arguments on Monday on whether 18 U.S.C. 922(g)(3), the federal statute that bans a person who is “an unlawful user of or addicted to any controlled substance” from owning a gun, violates the Second Amendment as applied to a Texas man. A federal grand jury indicted him after cops found a gun and some marijuana when they raided his house on another matter and he admitted to consuming it a few times a week.
From a Smoke Filled Dorm to an ‘Eye-Opening, Joyous Experience’
Weinstein said he smoked marijuana regularly throughout high school and college. This was when President Richard Nixon declared a War on Drugs. Congress then passed the Controlled Substance Act, which lumped the green leaf into a category of controlled substances such as heroin, LSD and ecstasy, deemed to have no medical purpose and a high potential for abuse.
Growing up in Ohio, he and his friends would smoke together in front of the stereo or at concerts, he said.
And yes, they feared getting arrested, but that didn’t stop anyone from doing it.
He studied accounting at the University of Cincinnati, where he said the dorms always smelled of pot smoke, and socializing with a neighbor or friend meant sharing a joint.
He curtailed his usage when he moved out of the dorm, making a lid — or an ounce that measured the same size as three fingers held together — last more than a year.
With a CPA and a Georgetown law degree in hand, he moved to New York City, where he smoked only a few times over the next 22 years when friends would share.
Weinstein practiced securities law and by 1992 he began filing class actions and working in disability law.
By his 50th birthday, Weinstein had built a reputation as a smart and serious litigator.
“I had a meaningful practice,” he said.
That’s when a childhood friend gave him a joint for a gift, which Weinstein wrapped in foil and stashed in the center of a Beatles double-album for two years. He finally lit it up in December 2006 as he listened to The Beatles’ “Sgt Pepper’s Lonely Hearts Club Band” and Jimi Hendrix’s “Electric Lady Land” on a high-fidelity stereo.
He wrote about the experience in his lawsuit.
“It was a powerful, eye-opening, joyous experience,” Weinstein wrote.
He enjoyed his wine, thought about his happiness, family and friends — living and dead — God and religion, “and about how vibrant and spacious and detailed and alive the music sounded and how deeply the lyrics resonated spiritually,” Weinstein wrote.
He also thought about the law, “in particular the federal criminalization of him and his use of marijuana, and his conviction that it was totally unjust and wrong.”
“I think the federal government is overreaching,” he said in a May 23 interview. “I think they’re overreaching by telling me that I’m engaging in illegal behavior when I’m engaging in legal behavior under the laws of Arizona.”
Felonious Lies are Out of the Question
Weinstein heralds the known benefits of marijuana such as pain relief and as a sleep aid. It also brings about mindfulness, euphoria and relaxation for him, he said.
And it enhances his joy of music. Classic rock and jazz albums and CDs fill his shelves and his high-performance sound system creates the impression you’re listening inside a recording studio, he said.
Weinstein said he can talk for days about sound systems and how a good one will create a “three dimensionality” and reproduce the leading and fading transients of a note. For example, you can hear the initial burst of sound of a plucked guitar string and “the shiver of a drum cymbal as it fades away.”
“Occasionally Plaintiff will smoke 4-5 puffs during the course of an afternoon or evening, sit back and listen to music on his stereo system (which always sounds even better), daydream, enjoy some wine and food, and after several hours relax and watch a movie or program on television, feeling very refreshed,” Weinstein wrote.
Those movies and television programs include westerns, for which he’s “a major fan,” and guns are an integral part of the genre.
Weinstein chose to live in Tucson for many reasons, one of which was family nearby and the expanse of the desert and mountains.
“We moved out here because it was beautiful. We love Tucson. It’s fabulous here,” he said.
Medical marijuana was legal for 10 years in 2020 in Arizona when voters passed Proposition 207, also known as the Smart and Safe Act, which allows adults to possess up to an ounce of marijuana and grow up to six plants.
The legalization of the drug was also a factor in Weinstein’s move to Arizona, showing him “that the state had a libertarian mindset.”
He was also intrigued by the deep history of gun ownership in the Western United States.
“So when I was moving out here, one of the things that I wanted to do was learn how to handle a firearm, and … possibly buy one,” he said.
He said he’s taken classes on pistol basics and marksmanship, but because of his occasional legal use of marijuana under Arizona law, that’s as far as he can go.
To buy a gun from an authorized dealer requires the buyer to fill out a questionnaire known as a Form 4473, a transaction record that lets the government know an assortment of details such as name, address and phone number and whether the person:
Is a convicted felon, under indictment or a fugitive of justice
Has been adjudicated as a “mental defective” or sent to a mental hospital
Has been dishonorably discharged or under court restraint for stalking, harassing or threatening
Is in the country illegally.
The questionnaire also asks, “Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?”
The question comes with a warning that marijuana remains illegal under federal law no matter if it is legal under state law. And it’s a felony to answer falsely on the form.
“I had moved here thinking I could own a gun and all of a sudden for me to own a gun I would have to lie on a form that they have.” Weinstein said. “I’m not going to do that, I’m a lawyer.”
The Gordian Knot
Weinstein and criminal defendants Ali Danial Hemani, Patrick Daniels and Paola Connelly have something in common.
They argue that a federal statute that prohibits “an unlawful user” of “any controlled substance” from owning a gun violates their Second Amendment rights. And in the eyes of the government a user is anyone who habitually or regularly uses marijuana or any of the other controlled substances.
“I am not disputing that I use it, but I hardly use it all the time,” Weinstein said.
Weinstein noted that all of the challenges to the statute, 18 U.S. Code 922(g)3, are criminal cases except his. In recent years, the federal appellate courts have ruled on a bevy of cases related to the statute, including those of Hemani, Daniels and Connelly.
The facts of their cases don’t suggest they’re drug addicts.
The FBI was investigating Hemani’s possible financial ties to terrorism when federal agents searched his home and found about two ounces of marijuana, .95 grams of cocaine and a Glock 9-millimeter pistol. He told the agents he smoked marijuana every other day. The federal government hasn’t brought terrorist charges against him, but having the Glock and being a pot smoker got him a federal charge.
Cops stopped Daniels for driving without a license plate. His real crime though was for admitting to smoking marijuana “approximately fourteen days out of a month,” an admission that came because of two half-smoked joints in his car’s ashtray. Couple that with the loaded rifle and pistol in his car and he’s facing the same charge as Hemani.
Connelly didn’t even commit any crimes when El Paso cops came to her house. Her husband had fired a shotgun round at a neighbor, and when cops cleared Connelly’s house for safety reasons, they saw drug paraphernalia and found several guns, one of which Connelly had purchased. She told the cops she smoked marijuana occasionally “as a sleep aid and for anxiety.” She was charged with the same crime as Hemani and Daniels.
All three cases are out of the 5th U.S. Circuit Court of Appeals, which includes Texas, Louisiana, and Mississippi. In all three cases, the court found the federal statute violated the Second Amendment in their specific cases because they weren’t stoned while in possession of their firearms.
The 5th Circuit was following the U.S. Supreme Court’s guidance in a 2022 decision that said a restriction on the Second Amendment must be consistent “with this Nation’s historical tradition of firearm regulation.”
“The history and tradition before us support, at most, a ban on carrying firearms while an individual is presently under the influence,” Judge Kurt D. Engelhardt wrote for the court. “By regulating Paola (Connelly) based on habitual or occasional drug use, § 922(g)(3) imposes a far greater burden on her Second Amendment rights than our history and tradition of firearms regulation can support.”
The U.S. Supreme Court granted certiorari on the Hemani case and Weinstein added his two cents with an amicus brief.
The federal government argued in its petition that Second Amendment jurisprudence allows for temporarily disarming people who “pose a ‘clear’ danger of ‘misusing firearms,’” which the federal statute keeps unlawful users from doing. (Here is the government’s brief).
The government argues there’s a simple solution for anyone who smokes pot and owns a firearm.
“Anyone who stops habitually using illegal drugs can resume possessing firearms,” wrote D. John Sauer, the U.S. Solicitor General.
Sauer says in his petition to the court that illegal drug users possessing firearms is “analogous to founding-era laws restricting the rights of drunkards,” and he adds horns and a pitchfork to the picture he paints of the illegal drug user. They’re more dangerous than drunks, they have a propensity to break the law and pose a greater danger to misuse guns than law abiding citizens. The effects of drugs on their mind make them more dangerous and they’re more likely to commit crimes with guns to get drug money.
“Finally, armed drug users endanger the police,” Sauer wrote. “[D]ue to the illegal nature of their activities, drug users and addicts would be more likely than other citizens to have hostile run-ins with law enforcement officers.”
He points out that at least 32 states and territories restrict drug users or addicts from gun possession.
Hemani’s attorneys argue that the statute does not provide fair notice of what an “unlawful user” is.
“How frequently must one use the substance? How recently? In what quantity? The statute does not say,” attorney Naz Pasha Ahmad, wrote in Hemani’s brief to the court.
And even if there is fair notice, the statute goes far beyond “our Nation’s historical tradition of firearms regulation.”
Right now, the 5th Circuit rulings apply only to Hemani, Daniels and Connelly. That court refused to rule that the statute is inherently unconstitutional on a broader scale.
Weinstein made that argument, saying that tens of millions of Americans are prohibited possessors under the federal statute because they smoke marijuana legally under the laws of their states.
Weinstein told the Supreme Court in his filing in January that the government’s criminalization of marijuana has ensnared it in a Gordian Knot.
The federal government has effectively stopped enforcing federal marijuana laws in the last 15 years and prohibited the DOJ from spending money on enforcing federal marijuana prohibitions in states where medical marijuana is legal, he said.
“But if the users of marijuana that is legal under State law possess arms they become gun-wielding criminals primed to inflict violence on and endanger the safety of others and their communities,” Weinstein wrote.
And the knot gets tighter, he said.
Just six days after the government filed its brief in December, President Donald Trump issued an executive order to the Attorney General to make marijuana a Schedule III drug “in the most expeditious manner.”
Schedule III drugs are defined as drugs with “a moderate to low potential for physical and psychological dependence,” such as “products containing less than 90 milligrams of codeine per dosage unit (Tylenol with codeine), ketamine, anabolic steroids, testosterone,” according to the Drug Enforcement Administration.
Weinstein said the closest analogy to the U.S. government’s removal of the right of a class of people to keep and bear arms “solely for conduct that is legal under state law” is the King taking away the guns of American colonists.
“ … which was one of the primary causes of the American revolution and the principal reason for the adoption of the Second Amendment,” Weinstein wrote.
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