On Monday, the Department of Justice requested a federal judge to throw out a case challenging a ban on gun sales to those with medical marijuana cards.
The government’s belief that “trusting regular marijuana users to exercise sound judgment” with weapons is a major factor in the decision to issue the certificate.
DOJ also cited questionable historical similarities to previous gun restrictions for groups including Native Americans, Catholics, panhandlers, individuals who refuse to swear an oath of allegiance to the government, and people who shoot firearms while intoxicated to support its argument for dismissal.
Several medical marijuana patients, led by Florida’s Democratic agriculture commissioner Nikki Fried, have sued the federal government, arguing that it violates their constitutional rights in several ways.
Their complaint was recently amended in light of the Supreme Court’s decision in the New York gun rights case, though the two cases are unrelated. On Monday, the plaintiffs’ deadline to respond to the Department of Justice’s request to dismiss the case, the DOJ did as they had predicted and filed their own.
A government memorandum explaining why the government wants to dismiss the case was included with the request. The Justice Department has stated on a high level that only “law-abiding” citizens should have access to firearms.
Despite Florida’s recent decision to legalize medicinal cannabis, the department claimed that it makes little difference if the drug is still prohibited at the federal level.
In addition, the court ruled that the commissioner and a second defendant did not have the standing to assert that two plaintiffs who were refused firearms after disclosing on a federal form that they use medical marijuana were injured by the denial.
In addition to completely rejecting the notion of medicinal marijuana on the grounds that the government maintains that cannabis “has no currently accepted medical use,” the DOJ’s memo is full of odd references to precedent and prior gun policy.
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For ease of reference, this memorandum will refer to marijuana as “medical marijuana,” but Congress has determined that marijuana “has no currently accepted medical use.”
Even as it uses Florida law to support its firearms restriction, the department continues to claim that federal law takes precedence. This is although Florida recognizes a wide range of medical ailments that would qualify patients for cannabis.
In accordance with state regulation, it states that doctors must warn patients that using medical marijuana “impairs judgment, cognition, and physical coordination.”
Of course, numerous legal medications and alcoholic beverages also increase the risk of violence. Still, the DOJ used Florida’s disclosure rule to argue that cannabis consumers who also own firearms present a special threat to society.
The memorandum also rebuts the Supreme Court’s current rule, which sets a higher bar for regulations that seek to restrict gun rights. The opinion basically says that any restrictions on gun ownership must be in line with the historical context of the Second Amendment’s original passage in 1791.
In its memo, the Justice Department cites what it considers to be “analogous” cases of firearms restrictions that provide precedent for the existing marijuana policy and its continued implementation.
“Analogous statutes which purport to disarm persons considered a risk to society—whether felons or alcoholics—were known to the American legal tradition,” the memo argues.
It is “consistent with this Nation’s historical tradition of firearm regulation,” the DOJ claimed, justifying its efforts to disarm illegal drug users.
“Two related historical traditions are analogous: the tradition of excluding those who engage in criminal activity from the right to bear arms, and the tradition of disarming those whose status or behavior would make it dangerous for them to possess firearms.”
The Department of Justice once quoted historians who argued that “the right to bear arms was tied to the concept of a virtuous citizenry.” Whether the government is suggesting that marijuana users are intrinsically corrupt is unknown, but if so, it would not be the first time.
According to the filing, “the impairing effects of illegal drugs, including marijuana, make it dangerous for regular unlawful drug users to possess firearms.”
There is a “historical tradition exists of regulations that restrict or prohibit firearms possession by those whose possession of firearms the government deems dangerous,” The Department of Justice provided the following alternatives in its memorandum in support of a dismissal:
“In England and in America from the colonial era through the 19th century, governments regularly disarmed a variety of groups deemed dangerous. England disarmed Catholics in the 17th and 18th centuries.
Many American colonies forbade providing Indians with firearms…. During the American Revolution, several states passed laws providing for the confiscation of weapons owned by persons refusing to swear an oath of allegiance to the state or the United States. States also have disarmed the mentally ill and panhandlers.”
“Perhaps most relevant here, a long tradition exists of viewing intoxication as a condition that renders firearms possession dangerous, and accordingly restricting the firearms rights of those who become intoxicated.
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In 1655, Virginia prohibited ‘shoot[ing] any gunns at drinkeing…’ In 1771, New York prohibited firing guns during the New Year’s holiday, a restriction that ‘was aimed at preventing the ‘great Damages … frequently done on [those days] by persons…being often intoxicated with Liquor.'”
According to DOJ, “The historical tradition embodied by these laws continues today, with a majority of states’ restrict[ing] the right of habitual drug abusers or alcoholics to possess or carry firearms,”
Further, it states that cannabis “causes significant mental and physical impairments that make a person dangerous to possess firearms.”
DOJ said there is a “flaw” in that logic because “marijuana use impairs judgment—as Florida’s Board of Medicine puts it, ‘the ability to think, judge, and reason.'”
However, plaintiffs are not arguing that medical marijuana patients should be allowed to use firearms while under the influence of cannabis.
According to the report, “it is therefore dangerous to trust regular marijuana users to exercise sound judgment while intoxicated,” which is unfortunately supported by the high number of fatal car accidents involving stoned drivers.
“Marijuana users with firearms pose a danger comparable to, if not greater than, other groups that have historically been disarmed. For example, ‘like the mentally ill,’ drug users ‘are more likely to have difficulty exercising self-control, making it dangerous for them to possess deadly firearms.’
In addition, the impairments caused by marijuana use are analogous to those caused by ‘intoxicat[ion]’ with alcohol, which has historically justified firearms restrictions. In fact, greater justification exists for firearms restrictions on marijuana users because, unlike alcohol, marijuana is an illegal drug.
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Such restrictions are therefore also analogous to firearms restrictions on those engaged in criminal activity.”
Democratic gubernatorial candidate Nikki Fried told Marijuana Moment on Friday that she anticipates the department will file a motion to dismiss but that she is confident in the outcome of the case if it proceeds to the merits. She is allowed to face incumbent Gov. Ron DeSantis (R) in November.
She was referring to the question on the ATF background check form about a person’s marijuana use. “I would imagine how this is going to eventually fold out, because of the new SCOTUS opinion from a couple weeks ago,” she added.
“I would imagine that, along the way, they’re going to keep fighting it until they get told by a judge to do it,” Fried claimed. “But right now, we’re still monitoring it.”
Because of the recent SCOTUS judgement, the plaintiffs have chosen to submit the amended case. They contended that the existing restriction should not hold up in court with the new precedent since marijuana prohibition was implemented more than a century after the ratification of the Second Amendment and because doctors previously prescribed cannabis before it was criminalized.
After asking for an extension of time to respond to the lawsuit before the U.S. District Court for the Northern District of Florida, the Department of Justice obviously spent some of its time trying to poke holes in that argument.
However, in doing so, the agency brought attention to the department’s track record of enacting contentious gun rules, such as limiting the right to bear arms for Native Americans and those who refused to pledge allegiance to the United States.
Also of note is the department’s recognition of the U.S. attorney general’s “authority to ‘transfer between schedules’ any drug or’remove any drug or other substance from the schedules’ if, after considering scientific and medical evaluations and recommendations from the Secretary of Health and Human Services, he finds that the drug meets criteria for a different schedule or does not meet the requirements of any schedule.”
It stated, “Since the enactment of the CSA, however, the Executive Branch has denied various requests to reschedule marijuana, and marijuana has been and remains a Schedule I drug,” underscoring the Biden administration’s failure to amend federal cannabis rules thus far.
In an earlier interview, Fried clarified for Marijuana Moment that the issue is not about broader access to firearms. She and other major partners in the gun reform movement believe that a successful constitutional challenge would improve public safety.
In particular, Fried argues that this creates an incentive to lie, buy a gun on the black market, or forego a constitutional right because state-compliant medical cannabis patients are required to fill out an ATF form that asks about marijuana use (and answering in the affirmative would render them ineligible for a gun purchase).
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Since “habitual marijuana users” and other disqualified individuals were able to obtain firearms illegally in Michigan, the ATF issued a guidance in 2020 mandating federal background checks for all unlicensed gun buyers in the state.
Fried, along with two other medical marijuana patients in the state, and Neill Franklin, a retired police officer and former executive director of the Law Enforcement Action Partnership (LEAP) who has refused to use medical cannabis despite its therapeutic value for the pain he experiences because of the potential gun rights ramifications, have filed the lawsuit.
The legal challenge also relies on a novel reading of the Rohrabacher-Farr Amendment, a provision of federal budget bill riders that prohibits the Justice Department from interfering with state medical cannabis programs using federal funds.
The federal government is breaching that provision, the suit claims, by stopping Florida from adding new patients to develop its program and so preventing people like Franklin from taking medical marijuana without risking the loss of their right to buy firearms.
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In a new memorandum, DOJ argues that Franklin lacks standing since he has not suffered any concrete harm. The state further noted that the Rohrabacher-Farr Amendment only offered limited safeguards and emphasized that it has not spent any money to obstruct the execution of Florida’s medical cannabis program.
Legislation has been introduced in the past to prevent medicinal cannabis patients from losing their Second Amendment rights to own firearms, but it has not passed.
