The 11th Circuit Revives a Constitutional Challenge to the Federal Law That Disarms Medical Marijuana Patients
The appeals court concluded that the government had failed to show that policy is consistent with "this Nation's historical tradition of firearm regulation."
The U.S. Court of Appeals for the 11th Circuit last week revived a Second Amendment challenge to the federal law that bars illegal drug users from owning guns. In a ruling published on Wednesday, a three-judge panel unanimously concluded that the federal government had failed to show that policy, as applied to state-authorized medical marijuana users in Florida, is "consistent with this Nation's historical tradition of firearm regulation"—the constitutional test that the U.S. Supreme Court established in the 2022 case New York State Rifle & Pistol Association v. Bruen.
"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," writes Judge Elizabeth Branch, a Donald Trump appointee, in an opinion joined by Judges Robert Luck and Gerald Tjoflat, who were appointed by Trump and Gerald Ford, respectively. "We therefore vacate the district court's order and remand for further proceedings consistent with this opinion."
The case, Cooper v. Attorney General, began as a lawsuit that Nikki Fried, then Florida's commissioner of agriculture and consumer services, filed in April 2022. Fried, a Democrat whose responsibilities included overseeing the issuance of concealed carry permits as well as the state's medical marijuana program, was troubled by the implications of 18 USC 922(g)(3), which makes it a felony for an "unlawful user" of "any controlled substance" to receive or possess a firearm. She argued that Floridians should not have to choose between exercising the constitutional right to armed self-defense and using cannabis for symptom relief in compliance with state law.
That position made sense to Florida Gov. Ron DeSantis, a conservative Republican who is not otherwise known for his enlightened views on drug policy. "The governor stands for protecting Floridians' constitutional rights—including 2nd Amendment rights," his office said in response to Fried's lawsuit. "Floridians should not be deprived of a constitutional right for using a medication lawfully."
DeSantis reiterated that point in January 2024, when he was vying with Trump for the Republican presidential nomination. During a campaign stop in New Hampshire, DeSantis was asked about Section 922(g)(3)'s impact on cannabis consumers in states that have legalized marijuana for medical or recreational use. "I don't think that's constitutional, to be honest with you," he replied. "If you're using a legal product, I don't see how that can nullify a constitutional right."
At that point, Allen Winsor, a Trump-appointed judge on the U.S. District Court for the Northern District of Florida, had already dismissed Fried's lawsuit. Winsor concluded that Section 922(g)(3) met the Bruen test even as applied to state-authorized medical marijuana users.
Fried, who appealed that decision to the 11th Circuit, was removed as a plaintiff after she left office at the beginning of 2023. The remaining plaintiffs include two registered Florida patients who want to buy guns for self-protection: Vera Cooper, a septuagenarian business owner who uses marijuana to treat chronic knee pain and insomnia, and Nicole Hansell, a veteran of the Afghanistan war who uses marijuana to treat post-traumatic stress disorder. The third plaintiff is Neill Franklin, a retired police officer who owns a gun and would like to participate in Florida's medical marijuana program but not at the cost of surrendering his Second Amendment rights.
In the district court, the government argued that medical marijuana patients are not part of "the people" whose "right to keep and bear arms" is guaranteed by the Second Amendment because they are not "law-abiding, responsible citizens." Although Winsor did not address that claim, the 11th Circuit explicitly rejected it.
"While there is a history and tradition in this Nation of disarming convicted felons," neither Cooper nor Hansell has "ever been convicted of any crime, let alone a felony," Branch writes. "Nor are there any allegations that they are engaging in felonious conduct."
In fact, Congress has implicitly condoned the conduct that disqualifies Cooper and Hansell from gun ownership under Section 922(g)(3). Every year since 2015, Branch notes, Congress has approved a spending rider that bars the Justice Department from interfering with state medical marijuana programs. And according to their lawsuit, Cooper and Hansell "act in reliance upon" that rider and "only engage in activity" that "they know will not expose them to punishment or liability under state or federal law."
At most, Branch notes, the plaintiffs' medical marijuana use makes them guilty of a federal misdemeanor. "The parties do not cite, and 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," she writes. "We decline to hold so now."
The 11th Circuit also rejected the claim that Cooper and Hansell are excluded from the Second Amendment because they are not "responsible." That argument, Branch says, is precluded by the Supreme Court's June 2024 ruling in United States v. Rahimi, which upheld a prosecution for violating the federal ban on gun possession by people subject to domestic violence restraining orders.
"We reject the Government's contention that Rahimi may be disarmed simply because he is not 'responsible,'" Chief Justice John Roberts wrote in the majority opinion. "'Responsible' is a vague term. It is unclear what such a rule would entail. Nor does such a line derive from our case law."
Since "the Second Amendment's plain text covers Cooper and Hansell," Branch says, the question is whether disarming them based on their medical marijuana use satisfies the Bruen test. Winsor thought it did. Even assuming that patients like Cooper and Hansell are covered by the Second Amendment, he said, their cannabis consumption makes them analogous to criminals and other "dangerous" individuals, such as "alcoholics and the mentally ill," who historically have been disarmed to protect public safety.
The 11th Circuit disagreed. The government "has not pointed to any historical tradition of disarming those engaged in misdemeanant conduct," Branch notes. Furthermore, "felon dispossession laws require an individual to be convicted of a felony before they lose their Second Amendment right." By contrast, Cooper and Hansell "have never faced a judicial determination of guilt for any crime."
Because the laws cited by the government require a felony conviction, they are "starkly different" from the policy challenged in this case, Branch writes. Cooper and Hansell, she says, "are not relevantly similar to felons who have historically been disarmed."
Branch acknowledges that the United States "has a long history and tradition of disarming individuals it fairly deems as dangerous, including the mentally ill, drug addicts, alcoholics, and the intoxicated." But based on the record at this point, she says, "Cooper and Hansell cannot fairly be labeled as dangerous people solely due to their medicinal marijuana use."
The government averred that medical marijuana patients who own guns "endanger public safety in multiple ways." They "may mishandle firearms—or use firearms to commit crimes—because of 'drug-induced changes in physiological functions, cognitive ability, and mood,'" the Justice Department said. They "may 'commit crime in order to obtain money to buy drugs'—and thus pose a danger of using firearms to facilitate such crime." And "violent crime may occur as part of the drug business or culture."
The government, in other words, implicitly portrayed Cooper, Hansell, and Franklin as potential public menaces because they might be inclined to handle guns while stoned, commit crimes to support their drug habits, or (for some reason) buy marijuana from violent drug dealers instead of state-licensed dispensaries. But as Branch notes, the record is devoid of any evidence to back up those concerns.
"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 [first amended complaint]," Branch writes. "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. 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."
In short, "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," Branch writes. "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."
That conclusion, Branch notes, is consistent with decisions by other federal appeals courts. In the 2024 case United States v. Connelly, for example, the U.S. Court of Appeals for the 5th Circuit held that the government could not constitutionally prosecute a Texas woman for violating Section 922(g)(3) based solely in her "habitual or occasional drug use." This year in United States v. Cooper, the U.S. Court of Appeals for the 8th Circuit ruled that defendants charged under that statute should have an opportunity to rebut the presumption that their drug use makes them dangerous. And last month in United States v. Harris, the U.S. Court of Appeals for the 3rd Circuit ruled that Section 922(g)(3) "constitutionally restricts the gun rights of drug users only as long as they present a special danger of misusing firearms."
While federal courts generally have rejected facial challenges to Section 922(g)(3), the 11th Circuit's ruling and the decisions that Branch cites show that several have been open to claims that the law is unconstitutional as applied to individuals who do not plausibly pose a threat to public safety. Judging from the weakness of the arguments that the government has been able to muster in the Florida case, that category includes people who use marijuana for medical purposes in compliance with state law.