FL Democrat cites Bruen in challenge to federal ban on guns and weed

Florida Agriculture Commissioner Nikki Fried’s lawsuit challenging the federal prohibition on marijuana use by gun buyers was officially launched several months ago, but the Democrat is using the Supreme Court’s recent decision in Bruen to bolster her argument that the current federal restrictions run afoul of the Second Amendment.

Fried is also vying to become the Democratic gubernatorial candidate in Florida this year, and I have a sneaking suspicion that her lawsuit is motivated more by electoral politics than any fervent support for the right to keep and bear arms, but even so, the litigation itself isn’t without merit.

The lawsuit centers, in part, on a federal form that must be completed by people seeking to purchase guns.

“Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance? Warning: 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,” the form says.

Fried’s attorneys argued that prohibiting people who use medical marijuana from buying or having guns is a relatively recent development in the U.S.

“Quite simply, there is no historical tradition of denying individuals their Second Amendment rights based solely (or even partially) on the use of marijuana,” the lawsuit said. “In fact, historical evidence shows that marijuana was considered a legitimate and legal form of medicine in England, America, and other western countries through the mid-Nineteenth and early-Twentieth Centuries.”

According to the complaint, evidence shows that medical marijuana was used “as early as 5,000 years ago, and it reached its “medical ‘heyday’ in the west between 1840 and 1900.”

Doctors began prescribing marijuana around 1842, but it was outlawed in 1941.

“None of the federal case law relating to whether marijuana users may be stripped of their Second Amendment rights applies to the historical analysis that Bruen (the U.S. Supreme Court’s ruling in the New York case) requires,” the plaintiffs argued.

Remember, under the test laid out by the Supreme Court in Bruen, it’s up to the federal government to show that the prohibition on gun purchases (and possession) by those using marijuana comports with the history and tradition of the right to keep and bear arms, particularly as it was understood and exercised at the time of the ratification of both the Second and Fourteenth Amendments. That doesn’t mean that the Justice Department has to find 18th or 19th century prohibitions on gun owners smoking pot, however. As Justice Clarence Thomas said in the Bruen opinion, the government can point to historical “analogues” to current gun control laws, but even then it’s going to be difficult for Attorney General Merrick Garland to make the case that the current rules bear any resemblance to longstanding regulations in the past.

Note as well that the current federal law, as recognized in the language on Form 4473s, allow those previously convicted of misdemeanor DUIs, public drunkenness, or other alcohol-related offenses to maintain their right to keep and bear arms. It seems odd to argue that those individuals have a legal right to keep and bear arms but a cancer patient with a medical marijuana card issued by the state of Florida can’t eat an edible to help with her nausea from chemotherapy treatments without forfeiting her right to keep a gun in her home or obtain a concealed carry license to protect herself in public.

I will admit that the more appropriate venue to fix the problem is Congress, but with most Democrats opposed to doing anything that might expand the Second Amendment rights of Americans and most Republicans reluctant or hostile to the idea of removing cannabis from the DEA’s Schedule 1 roster of narcotics and decriminalizing or legalizing its possession, the courts are basically a venue of last resort.

Of course, that also raises the question about who exactly Fried is trying to win over with her lawsuit. Is she hoping to attract pro-marijuana Democrats to vote for her in the primary, or is this aimed at wooing Republicans away from voting for Gov. Ron DeSantis in the fall if she manages to win the Democratic gubernatorial nomination? Both scenarios seem like a stretch to me, but with Fried polling behind Charlie Crist in the primary, this may just be a case of trying to use every angle she can to scoop up a primary vote here and there. I honestly don’t know how successful that strategy will be, however, especially with Democrats so hostile to the Second Amendment. I’m firmly in support of Fried’s lawsuit, but if I were a Florida voter my decision in the general election would be an easy one, and Fried would not be my pick, especially given her support for a number of other gun control laws including a ban on so-called assault weapons.

Another big question is what happens to this lawsuit after Fried is no longer the Ag Commissioner. Since she’s running to be the Democratic candidate for governor and not for re-election to her current position, whoever wins that seat in the November elections will have to decide whether they want to carry on with the litigation. Florida’s primaries take place a little more than a month from now, but so far it doesn’t seem like Fried’s lawsuit and whether to continue it has emerged as a campaign issue for the three Democrats and two Republicans vying for the job.

At the moment, I’d say current state Senator Wilton Simpson is the front-runner for the seat, and I’ve reached out to his campaign to ask directly about whether he would continue to support the lawsuit against the Biden administration and the current ATF regulations barring medical marijuana users from exercising their Second Amendment rights. We’ll let you know what, if any, response we get from Simpson’s campaign.

Aug 18, 2022 5:30 PM ET