Biden administration relies on flawed argument for banning gun possession by marijuana users

President Joe Biden, who recently issued a mass pardon for low-level marijuana offenders, says cannabis consumption should not be treated as a crime. His administration nevertheless defends the federal ban on gun possession by marijuana users, arguing that Second Amendment rights are limited to “law-abiding citizens.”

Last week, a federal judge agreed, dismissing a challenge to that rule by medical marijuana patients in Florida. The reasoning underlying that decision shows that the constitutional right to armed self-defense, which the Supreme Court has repeatedly upheld, is still subject to legislators’ arbitrary whims and irrational prejudices.

Florida is one of 37 states that allow medical use of marijuana, most of which also have legalized recreational use, a policy supported by two-thirds of Americans. Under federal law, by contrast, marijuana remains illegal for all purposes except government-approved research, and simple possession is punishable by a fine of $1,000 or more and up to a year in jail.

For marijuana users who own guns, the potential penalties are much more severe. They include up to 15 years in prison for illegal firearm possession, up to 15 years for “trafficking in firearms” by obtaining a gun and up to 10 years for failing to report cannabis consumption on the form required for gun purchases from federally licensed dealers.

The plaintiffs in the Florida lawsuit included Nikki Fried, a Democrat who runs the state’s Department of Agriculture and Consumer Services; two patients who participate in Florida’s medical marijuana program; and a gun owner who says he would like to do so but does not want to surrender his right to arms. They argued that the ban on gun possession by cannabis consumers violates the Second Amendment.

Florida Gov. Ron DeSantis, a Republican who does not agree with Fried about much, expressed support for that argument. “The governor stands for protecting Floridians’ constitutional rights — including 2nd Amendment rights,” his office said after Fried filed her lawsuit in April. “Floridians should not be deprived of a constitutional right for using a medication lawfully.”

In his ruling last Friday, however, U.S. District Judge Allen Winsor agreed with the Biden administration that the deprivation DeSantis condemned was “consistent with this Nation’s historical tradition of firearm regulation.” That is the constitutional test the Supreme Court has said gun control laws must pass.

Winsor noted a long history of banning gun ownership by people convicted of certain crimes. But as Supreme Court Justice Amy Coney Barrett pointed out in a 2019 dissent when she was a judge on the U.S. Court of Appeals for the 7th Circuit, that history does not suggest that any crime, or even any felony, will do.

“Legislatures have the power to prohibit dangerous people from possessing guns,” Barrett wrote. “But that power extends only to people who are dangerous. ”

Are cannabis consumers dangerous? Winsor suggested that they are, accepting the Biden administration’s analogy between the gun ban for marijuana users and laws enacted in the 17th, 18th and 19th centuries that prohibited people from either carrying or firing guns “while intoxicated.”

That analogy fails, however, because those laws did not impose general bans on gun possession by drinkers. They applied only when gun owners were under the influence.

The implausibility of the Biden administration’s historical argument is compounded by the fact that the “crime” of consuming marijuana did not exist when the Second Amendment was ratified or when the 14th Amendment required that states respect the right to keep and bear arms. Throughout the 19th century, cannabis, opium and other currently prohibited substances were legally available over the counter and widely consumed as ingredients in patent medicines.

It seems highly doubtful that Americans of that era would have thought eschewing such products should be a condition for exercising the rights protected by the Second Amendment and state analogs. Yet the Biden administration insists that it should, even as the president decries the injustice wrought by the war on weed.

Jacob Sullum is a senior editor at Reason magazine.

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