One of the more interesting Second Amendment-related lawsuits floating around federal courthouses is a challenge to the federal law barring marijuana users from exercising their right to keep and bear arms. Florida Agriculture Commissioner Nikki Fried, a Democrat who lost her bid to become the Democratic gubernatorial candidate in Florida this year, filed suit (along with several individual plaintiffs) against the Biden administration, Attorney General Merrick Garland, and ATF Director Steve Dettelbach. As Ag Commissioner Fried oversees the state’s concealed carry licensing system, but the federal prohibition on gun ownership for users of unlawful substances means that even in states that have legalized medical or recreational cannabis use, medical marijuana patients have to choose between their health and their right to self-defense.
In its initial response to Fried’s lawsuit, the DOJ claimed that the current prohibitions are in line with other bans on gun ownership both past and present, including Catholics, Native Americans, and panhandlers. Now, in the federal government’s latest filing, the DOJ argues that marijuana users are just too darn dangerous to access their right to keep and bear arms.
“Defendants showed that marijuana’s impairing effects make it dangerous for marijuana users to possess firearms,” the filing says. “Yet Plaintiffs argue that marijuana users can ‘safely use a firearm…when not using or under the influence of marijuana.’”
DOJ said that argument is flawed because “a marijuana user who possesses a firearm will have access to that firearm when she uses marijuana. And because marijuana impairs judgment, the danger exists that she will fail to exercise sound judgment and use the firearm while impaired.”
In other words, the department is suggesting that a patient might smoke cannabis to treat their pain and then lose their sense of judgement, posing a unique danger to themselves or others.
“Finally, Plaintiffs argue that marijuana, or at least medical marijuana, does not induce violent crime,” the Justice Department said. “But for purposes of this motion, Defendants are not relying on the association between drug use and violent crime.” Instead, it is arguing that “apart from any propensity of unlawful drug users to commit violence,” cannabis has impairing effects that cause “irrational and unpredictable behavior.”
The hypothetical scenario offered by the DOJ could certainly happen, but I would argue that the same is true for any gun owner who also imbibes alcohol; another intoxicating substance that, when consumed to excess, can cause users to lose their sense of judgement. That wouldn’t be a valid reason to declare that gun owners aren’t allowed to possess or consume alcohol, however, and I think the same holds true for cannabis users; particularly those who use cannabis to help alleviate pain. After all, pain can also inhibit sound judgement, but apparently that’s okay with the DOJ.
DOJ further repeated points it has made in past filings, arguing that Fried and another plaintiff lack standing in the case, that the historical analogues it cited to justify the marijuana ban are relevant and that the policy does not constitute any violation of a congressional rider that prohibits the Justice Department from using its funds to interfere in the implementation of state medical cannabis programs.
“No factual development concerning the individual Plaintiffs is necessary,” DOJ said. “Plaintiffs claim that these laws cannot be constitutionally applied to any medical marijuana users. Their claims are not based on any factual allegations that separate the individual Plaintiffs from medical marijuana users in general.”
As sympathetic as I am to the arguments raised by Fried and the other plaintiffs, including current medical marijuana card holders who cannot lawfully purchase or carry a firearm, I don’t have high hopes that this lawsuit is going to be successful. In fact, I think it’s largely a political stunt on the part of Fried that was designed to help her in her Democratic primary fight against Rep. Charlie Crist. What happens to the lawsuit once Fried is no longer Ag Commissioner is an open question, and there’s no guarantee that her successor will continue on with the litigation when Fried leaves office in just a few months.
The simplest way to address the issue would be for Congress to simply remove cannabis from the list of Schedule 1 drugs, or, if they want to take a more modest approach, adopt the policy offered by Republicans like the late Rep. Don Young of Alaska, who introduced the Gun Rights and Marijuana Act last year, or West Virginia’s Alex Mooney, whose Second Amendment Protection Act would, among other things, “amend federal law to allow state-legal medical marijuana patients to own guns.”
Unfortunately, the vast majority of Democrats don’t want to do anything that would aid the exercise of the right to keep and bear arms, and most Republicans are reluctant to cast a vote that could open the door to legalizing cannabis use, so it’s unlikely that Congress is going to solve this problem on its own… or that the issue is going to be resolved at all in the near future.