War on Drugs

Florida's Agriculture Commissioner Says the Ban on Gun Possession by Marijuana Users Is Unconstitutional

Nikki Fried, a Democrat, is suing the Biden administration, arguing that the policy violates the Second Amendment and a congressional spending rider.


Nikki Fried, who runs Florida's Department of Agriculture and Consumer Services, is suing the Biden administration over a federal law that prohibits marijuana users from possessing guns. Fried, who is the only Democrat among Florida's statewide elected officials and is seeking the Democratic nomination for governor, argues that the ban violates the Second Amendment and a congressional spending rider that bars the Justice Department from interfering with state medical marijuana programs.

Florida is one of 37 states with such programs, and Fried is suing in her official capacity, because her department oversees concealed carry permits and parts of the state's cannabis industry. "I'm suing the Biden Administration because people's rights are being limited," she said on Twitter this morning. "Medical marijuana is legal. Guns are legal. This is about people's rights and their freedoms to responsibly have both."

That announcement provoked considerable consternation among Democrats. One Twitter user described Fried as a "DINO" (Democrat in Name Only), saying "FL does that to you." Another commented: "Oh yikes! I was supporting you until I read this. No thanks, Nikki. Unfollowed. And I hope there's a better Democrat out there to take your place."

It says something about the Democratic Party's view of the Second Amendment that defending the rights it protects is enough to make you a DINO. If a federal law said marijuana users are not entitled to freedom of speech or can be searched at will without a warrant, Fried's critics surely would be outraged. But because she is focusing on the constitutional right to keep and bear arms, she is obviously a bad Democrat. The party's expurgated version of the Bill of Rights evidently imposes no constraints on gun control, even when it is clearly arbitrary and unjust or disproportionately harms racial minorities.

Fried's lawsuit, which is joined by two Florida medical marijuana patients, names Attorney General Merrick Garland and Marvin Richardson, the acting director of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), as defendants. The complaint, which was filed today (4/20, naturally) in the U.S. District Court for the Northern District of Florida, says "the Defendants' irrational, inconsistent, and incoherent federal marijuana policy undermines Florida's medical marijuana and firearms laws and prevents Commissioner Fried from ensuring that Floridians receive the state rights relating to them."

As the complaint notes, the ATF form that gun buyers are required to fill out before they complete a purchase from a federally licensed dealer asks, "Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?" If so, the purchase is prohibited by the Gun Control Act of 1968.

The current version of that law prohibits cannabis consumers from possessing as well as receiving firearms, completely stripping them of their Second Amendment rights. Violating that ban is a felony punishable by up to 10 years in prison. Falsely denying marijuana use on the ATF form is another felony, punishable by up to five years in prison. As one state after another decided to allow medical or recreational use of marijuana, the ATF added a warning to the drug question: "The use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medicinal or recreational purposes in the state where you reside."

When Illinois legalized recreational use in 2019, the bill included a provision that barred the Illinois State Police from taking away people's guns merely because they are cannabis consumers. But such protections have no impact on federal law, so even in Illinois marijuana users who buy firearms from gun dealers are committing at least two felonies. If they obtain guns from private sellers, who are not required to use the ATF form, they are still breaking the law by receiving and possessing firearms. The seller is also committing a felony, punishable by up to 10 years in prison, if he knows or has "reasonable cause to believe" that the buyer likes to smoke pot or uses it for medical purposes.

None of this ever made much sense, and it makes even less sense now that medical marijuana is legal in 37 states, 18 of which (accounting for more than two-fifths of the U.S. population) also allow recreational use. Fried's lawsuit notes that Supreme Court Justice Clarence Thomas, no one's idea of a hippie, has complained about the "half-in, half-out regime that simultaneously tolerates and forbids use of marijuana." In a 2021 case involving tax deductions for medical marijuana suppliers, Thomas bemoaned "this contradictory and unstable state of affairs," which he said "strains basic principles of federalism and conceals traps for the unwary."

Although Thomas did not mention the federal ban on gun ownership by marijuana users, it is a vivid example of "traps for the unwary." Marijuana-using gun buyers who do not fully comprehend the implications of the ATF form or never fill one out because they obtain guns through private transfers (including family gifts) may be oblivious to the federal felonies they are committing. A few years back, I discussed this issue with a leading marijuana reformer, and even he did not realize that the ban covers possession as well as purchases.

In the 2016 case Wilson v. Lynch, the U.S. Court of Appeals for the 9th Circuit ruled that banning gun sales to people who have medical marijuana cards is consistent with the Second Amendment because "empirical data and legislative determinations support a strong link between drug use and violence." That decision, Fried argues, suffered from "a thin and stale factual record" and ignored a 2013 study commissioned by the Office of National Drug Control Policy that found "marijuana use does not induce violent crime." She says "the stated factual basis for Wilson and its progeny, at least as it relates to state-law-abiding medical marijuana patients, is obsolete and without scientific support."

The complaint also notes that the 9th Circuit did not consider the annually renewed restriction that prohibits the Justice Department, which includes the ATF, from spending money to "prevent" states from "implementing state laws that authorize the use, distribution, possession or cultivation of medical marijuana." Fried argues that the challenged law and regulations violate that congressional command because they "prevent the implementation of Florida's medical marijuana program by punishing state-law-abiding patients and precluding those reasonably wishing to participate in the state medical marijuana program from doing so."

Fried is asking the district court to declare that the marijuana-related gun restrictions violate the spending rider and the Second Amendment "as applied to state-law abiding medical marijuana patients and those reasonably intending to participate in the state medical marijuana program." She also wants an injunction barring the defendants from enforcing those restrictions against "state medical marijuana patients."

At a press briefing today, Fried said she was "in no way challenging the federal government's right to enact reasonable gun regulations that protect the public." In fact, she said, "I believe the federal government needs to take more common-sense actions to keep families and communities safe from the senseless and horrific gun violence that has tragically impacted our state over the years." But she added that "denying the Second Amendment rights of medical marijuana patients is not about safety."

Florida's Republican governor, Ron DeSantis, supports Fried's position. "The governor stands for protecting Floridians' constitutional rights—including 2nd Amendment rights," his office said today. "Floridians should not be deprived of a constitutional right for using a medication lawfully."

NBC News reports that an ATF spokesperson declined to comment on Fried's lawsuit but "implicitly blamed federal lawmakers for not changing the Controlled Substances Act and the Gun Control Act." If Congress removed marijuana from the lists of controlled substances, as a bill that the House approved on April 1 would do, that would effectively restore the Second Amendment rights of cannabis consumers. But that bill is probably doomed in the Senate, as is the legalization bill that Senate Majority Leader Chuck Schumer (D–N.Y.) plans to introduce "before the August recess." And even if Democrats managed to attract enough Republican support to get a bill repealing the federal marijuana ban through the Senate, President Joe Biden, a supposedly reformed drug warrior who still supports pot prohibition, seems unlikely to sign it.

Trial lawyer John Morgan, a Biden fundraiser who financed Florida's medical marijuana ballot initiative, told NBC News he does not think the president will change his mind. "I talked to Joe about this personally, and he just won't do it," Morgan said. "Joe Biden doesn't understand marijuana….Joe has so much drug abuse in his own family that in his mind it's a no-go. The older you get, the less people understand what marijuana is all about."