President Joe Biden thinks it’s unfair that people convicted of simple possession of marijuana face lingering consequences for doing something he said should not be treated as a crime. Biden cited those burdens last October, when he announcement a mass pardon of low-level federal marijuana offenders, which he said would help “thousands of people who have already been convicted of simple possession” and “who may be denied employment, housing or educational opportunities as a result”. Yet the Biden administration, which recently began accepting requests for pardon certificates aimed at improving these consequences after shuffling for five months, actively advocates for another blatantly unfair disability associated with cannabis use: the loss of Second Amendment rights.
Below federal lawit’s a crime, punishable up to 15 years in prison, for an “illegal user” of a “controlled substance” to possess firearms. The ban applies to all cannabis users, even if they live in one of the 37 states that have legalized medical or recreational use. This handicap, an Oklahoma federal judge ruled last month, is not “consistent with this country’s historic tradition of gun regulation” – the constitutional test established by the Supreme Court’s 2022 ruling in New York State Rifles and Pistols Association vs. Bruen. The Department of Justice recently filed a notice indicating that he intends to appeal the ruling against the gun ban for marijuana users.
The Biden Administration defense prohibition rests on empirically and historically dubious assertions about the type of people who deserve to exercise the constitutional right to own and bear arms. Among other things, the Justice Department argues that “persons” covered by the Second Amendment do not include Americans who break the law, no matter how trivial the violation. He also argues that marijuana users are ipso facto untrustworthy and non-virtuous, which he argues makes them ineligible for gun rights.
According to the Biden administration, the original understanding of gun rights included exceptions broad enough to encompass people who use any intoxicant that lawmakers might one day decide to ban. He says the law criminalizing possession of firearms by cannabis users is analogous to laws targeting “intoxicated” people who carry guns in public places.
Judge Allen Winsor, whom Donald Trump appointed to the U.S. District Court for the Northern District of Florida in 2019, accepted the latter argument in November. Winsor fired a lawsuit in which Nikki Fried, a Democrat who was then Florida’s Agriculture and Consumer Affairs Commissioner, argued that medical marijuana patients have a constitutional right to own firearms. Winsor agreed with the Biden administration that no.
As historical precedent, Winsor noted colonial and state laws enacted in the 17th, 18th, and 19th centuries that prohibited people from carrying or shooting firearms “while intoxicated”. The analogy was strained, since these laws, which applied only to people under the influence, did not apply in private settings and did not categorically prohibit drinkers from possessing weapons. Although Fried’s Republican successor declined to appeal Winsor’s decision, the patients who joined the lawsuit are ask the United States Court of Appeals for the 11th Circuit to hear their case.
Another Trump appointee, Judge Patrick Wyrick of the U.S. District Court for the Western District of Oklahoma, disagree with Winsor in response to a challenge filed by a dispensary employee accused of violating the federal ban on possession of firearms by marijuana users. In a February 3 decisionWyrick said the government had failed to respond to Brown test.
In trying to do so, Wyrick noted, the Justice Department had cited “ignominious historic restrictions” that disarmed slaves, Catholics, Loyalists and Native Americans. He rejected the government’s argument that such precedents showed it was constitutional to deny Second Amendment rights to any group lawmakers deemed “untrustworthy.”
Wyrick was also unimpressed with the Biden administration’s claim that the Second Amendment includes a “vague ‘virtue’ requirement.” This theory, he said, is “disproved by historical records” and “inconsistent” with District of Columbia v. Hellerthe landmark 2008 decision in which the Supreme Court explicitly recognized that the amendment guarantees an individual right to retain firearms for self-defense.
Although simple possession of marijuana is a misdemeanor, the Department of Justice has argued that illegal drug use often results in criminal conduct even when a drug user has not been convicted of a crime. Wyrick was appalled by the government’s assertion that any violation of the law that lawmakers classify as a felony is enough to warrant overriding someone’s Second Amendment rights.
“History and tradition support the disarming of people who have demonstrated their dangerousness through past violent, violent, or threatening behavior,” Wyrick wrote. “There is no historical tradition to disarm a person solely on the basis that that person engaged in criminal conduct.”
Such a policy, Wyrick warned, would be an indefinite license to strip people of their Second Amendment rights. “A legislature could circumvent the Second Amendment by treating every crime, no matter how minor, as a felony, so as to deprive as many of its citizens as possible of their right to own a firearm,” he wrote. . “Imagine a world where the State of New York, to end the unfavorable judgment it received in Browncould make mowing the lawn a felony so he could then deprive all of his new ‘criminals’ of their right to own a gun.”
Wyrick posed this very hypothetical question to government lawyers. “Remarkably,” he said, “when presented with this hypothetical lawn mowing argument and asked if such an approach would be consistent with the Second Amendment, the United States responded, “ Yes “. So, in the federal government’s view, a state or the federal government could deem anything a crime and then strip those convicted of that crime – regardless of the harmlessness of the conduct – of their basic right to possess a firearm.”
Republican Florida Governor Ron DeSantis also rejects the Biden administration’s position. “Governor stands up for the protection of Floridians’ constitutional rights, including 2nd Amendment rights,” his office said after Fried filed his complaint. “Floridians should not be denied a constitutional right to use a drug legally.”
The National Rifle Association (NRA), which for years refused to challenge the rule that Fried said was unconstitutional, is now going even further than DeSantis. Amy Hunter, director of media relations for the NRA, recently said “It would be unfair for the federal government to punish or deprive a person of a constitutional right for the use of a substance that his state government has, as a matter of public policy, legalized.”
This controversy is part of a larger debate over the constitutionality of criminalizing firearms possession by broad categories of “prohibited persons”. In addition to “illegal” drug addicts, these categories include anyone who has ever been subjected to involuntary psychiatric treatment, whether or not they were considered a threat to others and regardless of their current mental health, and anyone convicted of a crime punishable by more than one year in prison, whether or not there was violence and no matter how long ago.
Critics of the latter rule, including the Supreme Court judge Amy Coney Barrett and 3rd circuit judge Stephanos Bibasargue that he is broader than permitted by the Second Amendment. The relevant story states that “legislatures have the power to prohibit dangerous people from owning firearms”, Barrett writing in a 2019 dissent as a judge on the United States Court of Appeals for the 7th Circuit. “But this power only extends to people who are dangerous.”
Ongoing litigation over the gun ban for cannabis users means two appeals courts, the 11th Circuit and the 5th Circuit, will have a chance to rule on the issue. Courts of Appeal, including 7th circuit and the 9th circuithave previously deferred to Congress’ assertion of a medication waiver to the Second Amendment based on hand-waving references to an association between drug use and violence. But these decisions were made before Brown established a higher constitutional test for gun control laws. This historical test explicitly excludes “any judge authorizing an ‘interest balancing inquiry’ that “asks whether the law burdens a protected interest in a way or to an extent that is out of proportion to the salutary effects of the law on other important government interests . “”
Regardless of the final decision of the appeals courts, it’s more than a little odd that the Biden administration is saying that marijuana use isn’t serious enough to warrant criminal penalties or the practical hardships that a conviction still leads one way or another East serious enough to void a constitutional guarantee. This contradiction is a measure of Biden’s commitment to a view of Second Amendment rights that makes them subordinate to legislative whims.