Florida Agriculture Commissioner Nikki Fried only has a few weeks left in office, but until then the Democrat is continuing to pursue her lawsuit challenging the federal prohibition on gun ownership for marijuana users, including those who possess a medical marijuana license in the state.

Fried, who unsuccessfully ran for the Democratic nomination for governor this year, filed an appeal this week with the Eleventh Circuit after a U.S. District judge dismissed her complaint; siding with the Department of Justice and ruling that the federal prohibition on cannabis is still the law, and that makes marijuana use a federal crime, regardless of what laws may be in place at the state level.

[U.S. District Judge Allen] Winsor’s ruling noted that Florida voters approved a constitutional amendment in 2016 that broadly authorized medical marijuana use. But the judge, who was appointed by former President Donald Trump, cited the U.S. Constitution’s Supremacy Clause in saying that marijuana remains illegal, despite the Florida amendment.

“In 2016, Florida stopped criminalizing the medical use of marijuana. Many people refer to this change as Florida’s ‘legalizing’ medical marijuana, but Florida did no such thing. It couldn’t. ‘Under the Supremacy Clause of the Constitution, state laws cannot permit what federal law prohibits,’ and federal law still prohibits possession of marijuana — for medical purposes or otherwise,” Winsor wrote, partially quoting a legal precedent.

In his ruling, Winsor also compared the prohibition on marijuana users owning firearms to the prohibition on those adjudicated as mentally defective, writing that “laws keeping guns from the mentally ill likewise flow from the historical tradition of keeping guns from those in whose hands they could be dangerous. Plaintiffs recoil at being compared to the mentally ill…but one does not have to label marijuana users mentally ill to recognize that both categories of people can be dangerous when armed.”

Winsor added that “although the prohibition reaches those habitually using marijuana (even if not currently under the influence), habitual drug users are analogous to other groups the government has historically found too dangerous to have guns.”

As much as I’d love to see this prohibition disappear, I think it’s going to be very difficult to overturn the rule in court. As Winsor says, marijuana possession and use is still a federal crime, though one that’s selectively enforced. The best way to resolve this issue would be for the federal government to decriminalize marijuana use and possession, but given the coming split in Congress and the anti-gun attitude of Joe Biden, I don’t see that as a realistic possibility over the next two years. The vast majority of Democrats are going to be reluctant to do anything that could lead to an increase in gun owners, and most Republicans (at least the ones in Congress) don’t seem eager to do anything that could lead to more marijuana users.

For the foreseeable future then, the untenable status quo is likely to remain in place and gun owners in states that have decriminalized or legalized cannabis for medical use are still going to be forced to choose between their right to keep and bear arms and their health… or choose to quietly break the law and hope that they can get away with it.