The Department of Justice under President Joe Biden has begun to target legal gun owners who also use marijuana in the many states that have legalized medicinal or recreational marijuana.
Federal statute makes it a felony punishable by up to 15 years for an unlawful user of a controlled substance to possess a firearm. Gun owners who partake in marijuana according to the laws of their state are therefore left in a precarious position.
The DOJ’s decision to file charges against such individuals has raised eyebrows. Biden pardoned federal convictions for marijuana possession last year. The strict enforcement in states where marijuana is legal has led critics to conclude that the administration is attempting to nullify the Second Amendment through a loophole.
A case is currently pending before the Eleventh Circuit challenging the statute and the DOJ’s enforcement of it. Former Florida agriculture commissioner Nikki Fried sued Attorney General Merrick Garland to overturn the ban in the Sunshine State, where medicinal marijuana is legal. She was joined in the lawsuit by two medical marijuana patients and a person who refuses to participate in Florida’s medical marijuana program “on the sole basis that they are unwilling to concede their Second Amendment rights.”
According to the filing, medical marijuana patients “may legally participate in Florida’s medical marijuana program in accordance with the Florida Constitution and state statute. However, solely due to this state-legal use of medical marijuana, [the Biden administration deems] them too dangerous to exercise their Second Amendment rights.”
But the effort is not only being led by Fried, a Democrat. Gun-rights groups have rallied against the ban as an unconstitutional infringement on the Second Amendment.
“Because all Americans are presumptively protected by the Second Amendment, the government can justify prohibiting medical marijuana patients from possessing firearms only by demonstrating that the prohibition is consistent with America’s historical tradition of firearm regulation,” wrote the Firearms Policy Council in an amicus brief.
According to the group, the tradition allows for the disarmament of dangerous persons. “But there is no tradition of disarming peaceable citizens, no tradition of disarming ‘unvirtuous’ citizens, and no tradition of disarming citizens based on their status as misdemeanants or felons,” argued the group.
The National Rifle Association has also come out against the ban, with the NRA’s director of media relations Amy Hunter telling Reason that “it would be unjust for the federal government to punish or deprive a person of a constitutional right for using a substance their state government has, as a matter of public policy, legalized.”
Fried and company initially lost in district court, but they hope to prevail in front of the Eleventh Circuit.
In a separate case, Judge Patrick Wyrick of the Oklahoma U.S. District Court heard arguments involving Jared Michael Harrison, a medical marijuana employee pulled over by the police and found to be in possession of marijuana and a loaded revolver.
Lawyers for the DOJ were of the opinion that past regulation that prevented intoxicated individuals from possessing a firearm justified their use of the ban in this case.
“The restrictions imposed by each law only applied while an individual was actively intoxicated or actively using intoxicants,” Wyrick argued in response. “Under these laws, no one’s right to armed self-defense was restricted based on the mere fact that he or she was a user of intoxicants [and] none of the laws appear to have prohibited the mere possession of a firearm.”
Whereas the laws the DOJ cited narrowly carved out exceptions to the right of armed self-defense, the firearm possession ban for users of marijuana “takes a sledgehammer to the right,” according to Wyrick.
“This is not a constitutionally permissible means of disarming Harrison,” Wyrick wrote. The case is currently being appealed to the Tenth Circuit.
With there being a real possibility of a circuit split, the ban could reach the Supreme Court in the near future.
In the meantime, the DOJ is undeterred. It recently filed charges against Deja Taylor, the mother of a six-year-old who shot his teacher in the face. State prosecutors in Virginia seemingly addressed the incident by filing charges against Taylor for neglect and failing to properly secure a handgun.
However, the DOJ has now charged Taylor with possessing marijuana in a state where it is legal. She was also charged with making a false statement about her marijuana usage. She checked “no” on a form that asked: “Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?”
Taylor is expected to plead guilty to the charges.