Medical Marijuana Users May Retain Second Amendment Rights

From yesterday's Eleventh Circuit decision in Fla. Comm'r of Ag. v. Attorney General, written by Judge Elizabeth Branch and joined by Judges Robert Luck and Gerald Bard Tjoflat:

[T]wo Florida medical marijuana users who wish to purchase guns and one gun owner who wishes to participate in Florida's medical marijuana program brought a pre-enforcement action seeking declaratory relief that 18 U.S.C. § 922(d)(3) and (g)(3), which prohibit unlawful drug users from possessing or being sold firearms, are unconstitutional as applied to them…. [T]he district court conducted Bruen's history-and-tradition test to determine if the challenged statutes were similar to historical gun regulations. The district court concluded that the laws and regulations at issue in this case were consistent with this Nation's historical tradition of firearms regulation and therefore did not violate the Second Amendment….

[We conclude that,] 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. We therefore vacate the district court's order and remand for further proceedings consistent with this opinion….

[T]he FAC [First Amended Complaint] contains no allegations regarding either the frequency of use or effects that consumption of marijuana has on [plaintiffs] Cooper and Hansell—or other medical marijuana users. The FAC's only allegation about the nature of Cooper's and Hansell's use is that they use marijuana only as permitted by Florida law. And while the district court labeled them as "habitual drug users," presumably akin to addicts, the FAC says no such thing, stating simply that Cooper and Hansell use marijuana for the medical benefits they receive and in reliance on the fact that they will not be criminally prosecuted for their medicinal use.

Viewing these allegations in the light most favorable to Cooper and Hansell, it appears they use rational thought in making their decision to use marijuana and would stop their marijuana use if they were placed at risk of criminal prosecution. Accordingly, Cooper's and Hansell's mental state is a far cry from that of addicts and alcoholics whose actions are controlled by their need to use alcohol or drugs. See United States v. Yancey (7th Cir. 2010) (affirming the constitutionality of 18 U.S.C. § 922(g)(3) as applied to a criminal defendant who "had been smoking marijuana daily" for two years, reasoning that "habitual drug users" like the defendant were "more likely to have difficulty exercising self-control").

For a similar conclusion by the Fifth Circuit (favorably cited by yesterday's Eleventh Circuit decision), see this post about U.S. v. Connelly.

Comments

[Malika the Maiz]

I certainly like this result, but I’m not sure about the reasoning about how they haven’t been adjudicated as committing a felony but instead admit to at most a misdemeanor because aren’t they admitting to continuous committing of misdemeanors? Seems odd that one felony could get your rights taken while fifty misdemeanors is just fine.

[Brett Bellmore]

Well, but wasn't that traditionally the difference between misdemeanors and felonies, that the latter could result in the loss of rights, while the former never could? At least until the Lautenberg amendment came along, but that was adopted at a point where the courts were pretending that gun ownership wasn't a right, and so doesn't really represent an exception.

Rahimi makes a mess of this, of course. Gun ownership might be the only civil right you can forfeit without a felony conviction, "because, guns".

[Frank Drackman]

Praise da Lord and pass the Bong!!!!
(For my Glaucoma only, I have a card!)

Frank

[John F. Carr]

Put on a sufficiently high court, I would rule that the necessity for these lawsuits means the drug provision in question is unconstitutionally broad. When exercising an enumerated right people need to have a clear understanding of what is a crime without having to raise a lengthy and expensive pre-enforcement challenge.

[Brett Bellmore]

Put on a sufficiently high court, I'd rule that the drug provision in question is unconstitutional regardless of how broad it might be, being a federal law in an area the federal government is delegated no authority.

[wvattorney13]

Another example where states are carrying the analogy too far. Sure, some old laws said that if you were drunk in public and committing an affray that you could be temporarily disarmed until you sobered up.

That was a temporary measure that only applied while you were drunk and causing trouble, and didn't apply to guns you might have at home. This law enacts a full ban on all possession at all times simply because you sometimes use a drug. I learned analogy in law school but this simply is not it.

[ReaderY]

Given that the Supreme Court in Harmelin v. Michigan (1991) upheld life imprisonment without parole for simple possession of an legal drug, and the case is binding on the lower courts, it seems to me that the court here is constrained to find that forfeiture of 2nd Amendment rights is also constitutional. The consequences of gun rights extending farther than a right not to be imprisoned for life are astounding. If an offense is serious enough that the 8th Amendment lets a state imprison people for life for it yet the 2nd Amendment says the same offense is not serious enough for the state to be able to take away their guns over it, the logical conclusion is that people must have a constitutional right to possess guns while in prison.

[ReaderY]

The court’s comparison of marijuana to alcohol is a completely subjective judgement. Not long ago it was comparable to heroin and cocaine, and it still is in many jurisdictions. A federal court simply cannot decide the question as a matter of federal constitutional law. Rather, if it CAN be treated as a serious drug, and there are numerous cases upholding convictions against constitutional challenges where it has been, then a state can take away 2nd Amendment rights over it.