Judge accepts a dubious argument for banning a gun

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.

Florida is one of 37 states that allow medical use of marijuana, most of which also have legalized recreational use. 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 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 his support for that argument.

In his ruling, 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 as a judge on the U.S. Court of Appeals, that does not suggest any crime will do.

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.”

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.


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