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.

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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."

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  1. Jesus Florida is a cesspit of Mask mandate bans and other draconian measures.

    1. All true!
      No one in their right mind would ever think of moving here!
      The sunshine is a myth!
      Stay away!
      Remain in havens of freedom like NY & LA!
      The sun will burn your eyes out!

      1. All alligators, hurricanes and hillbillies, right? No urbane Californian or sophisticated New Yorker should even consider it.

        1. Wow, fried okra got something right. I am stunned.

    2. No, its not a retard face.

  2. This is pretty brilliant politically.
    Go after Biden while getting the support of stoners and gun nuts.

    1. So Ted nugent?

    2. .38 Special

      1. .38, .39, whatever it takes.

    3. Lynard skinner?

      1. Seymour Skinner?

    4. Brad pitt
      Ice t
      Marinda lambert*
      *I'm my own body guard-her words

      1. I prefer Miranda Kerr. And she even likes to run around naked all the time.

        1. Okay. I don't normally look up folks that I don't at least somewhat recognize but...
          "...she even likes to run around naked all the time."

          Color me interested. 🙂

    5. Even stoners know democrats cannot be trusted.

    6. She definitely will not get the support of gun nuts. She's been rather bad on the issue overall.

      1. It’s an attempt.

      2. I haven't seen anyone *else* do it. Maybe she sucks most of the time, but I'll give her credit here.

    7. Too bad for her Sullum lives in Israel, not FL.

    8. Willie Nelson. There’s actually a lot of overlap in these categories.

  3. 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.

    One is not sure of this at all.

    1. Also, they do do this. Just not with marijuana. Sex offenders are denied access to social media for instance. Felons have voting rights suspended. Things like that.
      These are different cases though, and so it's more how much does it matter. There's a certain amount of question begging here. Which is, those with drug offenses often have certain rights taken away. We should be clear whether we're arguing that by itself is wrong, or whether the specifics of marijuana being lumped in with other drugs is wrong.
      I am open to both arguments actually, but definitely am open to the latter.

      1. And Biden mentioned, during his campaign, that no one should be in jail for smoking pot. Whay are those people still in jail, Joe?

      2. At least with sex offenders and social media, or felons and voting, the person has to be convicted of a crime before the rights are stripped.

      3. You forgot one thing. Convicted "Sex offenders are denied access to social media." Convicted "Felons have voting rights suspended."
        It's a different thing. The people you mentioned have that designated as part of their punishment.
        These people are having their rights taken away without their committing a crime. It is unconstitutional.

        1. > These people are having their rights taken away without their committing a crime.

          I mean... at the federal level, they are.

          They haven't been convicted of it, that's true.

    1. fail

    2. Roger Wilco

      1. What’s your vector victor?

          1. Oops, wrong response:
            "Tower's radio clearance, over!"

            1. "Roger fucks dogs, over."

            2. We have clearance clarance

    3. test. this is a test of the comment system. if this was an actual post, it would be contain insightful commentary or biting wit. or a combination of both.

  4. The fascists in power, regardless of party, will employ any excuse to disarm the American masses.
    I'm surprised the powers that be didn't demand disarming us when the fake COVID "crisis" was raging.

    1. Some states did order gun stores to close at a time when gun sales were skyrocketing.

  5. Oops, wrong response:
    "Tower's radio clearance, over!"

  6. This is a democrat in Florida opening her political campaign with the realization that nothing could be worse than being a democrat in Florida.

  7. Two thoughts:

    1) I think it is pretty funny that even the only Democrat in state office in Florida is a pain in Biden's side. The state has got to be Biden's least favorite at this point.

    2) Forget being deprived of gun rights. Marijuana users can be jailed for a year under federal law. It is a felony on a second conviction, which deprives people of nearly all rights. That would seem to both be the biggest problem and the source of a lot of the issues that that this suit nibbles at. How has legalization not become law yet? What is the political coalition with enough clout to prevent movement on this? I don't even see politicians advancing this far enough to use as a wedge issue. 74 senators come from states with medical marijuana programs. Are there really 14 senators who represent such states that will vote down making their own state's program legal? The current situation is a farce that erodes respect for rule of law.

    1. Biden is banning an antifungal used on strawberries. It is literally targeted at hurting flordia

      1. I doubt he even knows what that is. It’s probably some stunt Ron Klain cooked up. He’s the villain behind an awful lot of the evil shit coming out of the White House.

        1. "It’s probably some stunt Ron Klain cooked up. He’s the villain behind an awful lot of the evil shit coming out of the White House."

          True story. Though I think he's more like a city manager working for an unknown council, rather than an éminence grise.

    2. I think the answer is clear. Get Democratic majorities in both houses and a Democratic president and federal marijuana legalization is a shoo-in

    3. Regarding your point 2, I think there are enough Senators to at least pass a law allowing it in states with medical programs, but that's why Schumer won't let a clean bill get a vote, he wants his 25% tax and his only leverage is to hold legalization hostage in order to get it.

  8. But is she really a Democrat? The same was, or is, going on with Manchin and Sinema. Sinema never said she was a Democrat from what I understand during her campaign.

    1. Sinema is a Democrat. She is actually part of the Progressive wing - but she's a *carpetbagging Democrat in an office in ARIZONA* so there's a limit to what she can do if she wants to keep that seat.

      Keep in mind that no one in the Democratic Party is talking about primarying her in the next election. For all the bluster, the Party apparatchiks know what needed to be done.

      We have a carpetbagger problem here in AZ. McCain, Sinema, Kelley. So many of them come from out of state to snag one of our seats and then go live in DC.

      1. Don't simp for Sinema.

      2. NM, too. Our elections sell to Mikey Bloomberg far too cheaply and now that Haaland moron has been inflicted on the entire country.

  9. "..."I'm suing the Biden Administration because people's rights are being limited," she said on Twitter this morning..."

    Refreshing, coming from a politico.

  10. Fried's campaign must be circling the drain. First the claims that there was no sex tape, now this. For the woman who proudly revoked carry permits for political/ideological foes, claiming they were insurrectionists, this move smacks of desperation, not a concern for individual rights.

    1. THX for the context; grandstanding.

    2. Oh. I didn't realize this was her. Yeah, ok, this is... probably just PR, not principle, then.

  11. https://twitter.com/Wittorical/status/1515009310320906242?t=9K7kbicL5bt0c8AX9YbeKw&s=19

    Let’s give it up to this hero who denied allegations of a sex tape that she forgot to spread the rumor about first. Absolute legend.

    [Pic]

    1. I mean... she's cute enough. I have a camera. 😀

  12. Good for her. It's refreshing to see someone push back against their own party in defense of the right to bear arms.

    1. She’s in Florida. Being seen as a Biden stooge hurts her.

    2. She's not pushing back. She's desperately hoping to garner some Red votes because her campaign is circling the drain after several screwups on her part.

    3. So if a Democrat says they support gun rights (never mind file a lawsuit over them) you automatically assume they are being dishonest? Conor Lamb in PA is pro-Second Amendment. Is he lying, too?

  13. So, while its nice to see that even the Democrats in FL are right of Pinochet - why is the FL DoA have anything to do with gun permits?

    And why does she think the MJ ban is unconstitutional but the concealed carry permits her own department issues are not?

    1. Answered your own question. Her own department issues them.

    2. The Agriculture department has concealed carry permits because when the Florida Justice department had it, they slow walked and denied permits.
      So it was taken from them and given to Agriculture.

  14. Blind Pig, Broken Clock.
    Fuck Nikki Fried.

    On second thot ... NO.

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  17. Democrats need more candidates like Fried in certain voting districts. Democratic means “bottom-up” and should represent the voters in that district (within constitutional legal boundaries set by the U.S. Supreme Court).

    Democrats would likely have beat Trump by a landslide and wouldn’t be in such a weak position going into the midterm elections against Pro-Trump candidates if they followed a democratic bottom-up strategy.

    1. ? Then they would not be democrats.

      I do not get where you think the DNC has ever been 'bottom up'. They are the most pro-central planning by TOP MEN party.

      1. There was a moment when the people actually took control of the Democratic party, in the 1820's when they elected Andrew Jackson. They may also have been responding to a very divided people in 1860 when there were four major Presidential candidates, and at least two of them were Democrats...

        But they made sure that will never happen again. For instance, in the 1950's, the party bosses made sure they lost twice with Adlai Stevenson rather than have a chance of winning with Estes Kefauver - who became popular nationally by investigating connections between big city bosses (almost all Democrat) and organized crime. In 1972 they lost control of the D. National Convention to a radical fringe (not anyone favored by more than 10% of Americans of voting age), but since then they've made sure the bosses can override the primary results.

        But now it looks like the radical fringe is becoming the bosses.

  18. "But because she is focusing on the constitutional right to keep and bear arms, she is obviously a bad Democrat."

    Yep

  19. This is nothing more than political grandstanding from a politician to try to garner support for her campaign for Florida goobernor.

    In any case, ATF and/or DOJ can’t do anything about this – and Fried undoubtedly knows that – as the prohibition on drug users is under Federal law 18 U.S.C. § 922(g), and Marijuana as a Schedule 1 drug under Public Law 91-513 (1970)- not just bureaucrap regulation. And repeal of these laws has to go through Congress, or the courts must rule those laws unconstitutional.

    This suit will eventually get thrown out of court because the wrong entities are being sued, but probably not before the election this fall, which – again – you can be assured, Fried knows too.

  20. I hope the case names more than Garland and Richardson considering Richardson was let go/demoted yesterday.

  21. Very useful information for me. Thanks you SO much for sharing.

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