The Biden administration yesterday urged a federal judge to dismiss a lawsuit challenging the ban on gun possession by medical marijuana users, saying that law is consistent with a long tradition of firearm regulation in the United States. Furthermore, the Justice Department says, that prohibition makes perfect sense because marijuana use impairs the ability to handle guns responsibly.
The government's lawyers were responding to a lawsuit by Nikki Fried, a Democrat who runs the Florida Department of Agriculture and Consumer Services. Fried, whose department oversees concealed carry permits and some parts of Florida's medical marijuana industry, argues that prohibiting all cannabis consumers from owning guns violates the Second Amendment. She also claims that the policy violates a congressional spending rider, known as the Rohrabacher-Farr Amendment, that bars the Justice Department from interfering with the implementation of state medical marijuana laws.
As the Justice Department notes in its motion to dismiss, courts have "uniformly upheld" the federal law that criminalizes gun possession by "unlawful users" of controlled substances, which is a felony punishable by up to 10 years in prison. In the 2016 case Wilson v. Lynch, for example, 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factual basis for Wilson and its progeny, at least as it relates to state-law-abiding medical marijuana patients, is obsolete and without scientific support."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 Justice Department's brief does not claim that marijuana use makes people violent. Instead, it emphasizes marijuana's effects on "judgment, cognition, and physical coordination," which other courts have noted and Florida acknowledges in the consent form it requires for medical marijuana patients. Those effects, the Justice Department argues, make cannabis consumption incompatible with responsible gun ownership.
The same argument, of course, could be applied to many legal drugs. Yet the federal government does not prohibit gun ownership by people who take psychoactive prescription drugs, such as benzodiazepines or opioid analgesics. Nor does it prohibit drinkers from owning firearms, although the Justice Department notes state gun laws aimed at "alcoholics" or "intoxicated" individuals. The ban for cannabis consumers, by contrast, applies whether or not they handle guns while impaired.
The Justice Department compares cannabis consumers to "the mentally ill," quoting a 2019 case in which a federal appeals court averred that "habitual drug abusers, like the mentally ill, are more likely to have difficulty exercising self-control, making it dangerous for them to possess deadly fire-arms." Yet there is no blanket ban on gun possession by people with psychiatric diagnoses. The federal disqualification applies only to someone who has been "adjudicated as a mental defective" or "committed to any mental institution at 16 years of age or older."
That ban is surely overbroad, since it includes people who were never deemed dangerous to others and lasts long after they were subjected to involuntary treatment. But the rule is not nearly as broad as the Justice Department implies. If the federal government can draw distinctions among "the mentally ill," the vast majority of whom are allowed to own guns, why does it assume that all cannabis consumers are incapable of exercising that right without endangering the public?
Last June in New York State Rifle & Pistol Association v. Bruen, the Supreme Court said gun restrictions comply with the Second Amendment only when they are "consistent with this Nation's historical tradition of firearm regulation." That test puts the burden on the government to show that a law is analogous to policies that have long been seen as consistent with the right to keep and bear arms.
Toward that end, the Justice Department notes that "in England and in America from the colonial era through the 19th century, governments regularly disarmed a variety of groups deemed dangerous." For instance, "England disarmed Catholics in the 17th and 18th centuries," and "many American colonies forbade providing Indians with firearms." Those examples may not help the government's case as much as the Justice Department thinks. Likewise with another tradition that the brief does not mention: banning firearm possession by black people, another group "deemed dangerous."
The government is on somewhat firmer ground when it notes the long history of banning gun possession by people convicted of certain crimes. That tradition underlies the current federal gun ban for people convicted of crimes punishable by more than a year of incarceration. But as Justice Amy Coney Barrett pointed out as a judge on the U.S. Court of Appeals for the 7th Circuit, that "wildly overinclusive" rule sweeps much more broadly than the historical analogs cited by the government.
After delving into that history, Barrett concluded that a ban covering nearly all people convicted of crimes currently defined as felonies, including many whose offenses did not involve violence, was inconsistent with the Second Amendment. If so, the Justice Department's suggestion that lawbreaking as minor as marijuana possession is enough to disqualify someone from owning guns seems even more dubious.
Such conduct was not even a crime until the second decade of the 20th century, when states began to ban marijuana. And it seems doubtful that Americans in the 19th century, when patent medicines commonly included cannabis, would have thought that eschewing such products should be a condition for exercising the rights protected by the Second Amendment and state analogs.
The Justice Department argues that the Second Amendment rights recognized by the Supreme Court apply only to "law-abiding citizens," which cannabis consumers are not. It notes that federal law recognizes no legitimate use for marijuana, whether medical or recreational, and makes marijuana possession "a crime punishable by up to a year in prison."
While all that is true, President Joe Biden has said those policies are irrational. Although he opposes the outright repeal of federal pot prohibition, Biden thinks that no one should go to jail for marijuana possession, that cannabis should be reclassified to facilitate medical research, and that the federal government should not interfere with state laws allowing medical or recreational use.
On that last point, the Justice Department argues that enforcing the gun ban for medical marijuana users does not run afoul of the Rohrabacher-Farr Amendment. That rider, it says, applies only to drug prosecutions, not firearm prosecutions. It adds that the gun ban has not stopped Florida or the 36 other states that allow medical use of marijuana from implementing those laws; it merely has forced would-be participants to choose between guns and the medicine that could relieve their symptoms.
Two of the plaintiffs in this case are medical marijuana patients who unsuccessfully tried to buy guns. Those transactions were blocked after they admitted to using cannabis on the form required for gun purchases from federally licensed dealers. "Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?" the form asks. It warns that "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."
While those two plaintiffs might have standing to sue, the Justice Department says, Fried does not because she has not suffered any cognizable injury. The brief adds that Neill Franklin, a gun owner who says he might use medical marijuana but for the federal firearm ban, is not a proper plaintiff.
In any case, the Biden administration says, prohibiting medical marijuana users from owning guns is a perfectly rational policy that is consistent with the historical understanding of the right to keep and bear arms. Never mind that the president himself has said the current legal treatment of cannabis makes no sense, or that there is no 19th-century precedent for prohibiting people from owning guns based on the medicine they use.
Fried is currently vying with other Democrats to oppose Florida's Republican governor, Ron DeSantis, when he runs for reelection this fall. Despite their differences, Fried and DeSantis see eye to eye on this issue. "The governor stands for protecting Floridians' constitutional rights—including 2nd Amendment rights," his office said after Fried filed her lawsuit in April. "Floridians should not be deprived of a constitutional right for using a medication lawfully."