Griffen Thorne
Federal regulation prohibits marijuana customers from proudly owning or possessing firearms– even in states with authorized marijuana. Over the previous few months, totally different federal courts issued essential orders in hashish gun rights instances which may problem this establishment. Each instances centered on the 2022 U.S. Supreme Court docket case New York State Rifle & Pistol Association, Inc. v. Bruen, and each reached wildly totally different outcomes on basically the identical authorized and even factual points.
Final month, I wrote a publish entitled “Will Gun Control Laws Soften for Cannabis Users?“, the place I addressed a type of choices, United States v. Harrison, out of the Western District of Oklahoma (a part of the federal Tenth Circuit). At the moment, I wish to study the opposite case, Fried v. Garland, out of the Northern District of Florida (a part of the federal Eleventh Circuit). Beneath, I supply some ideas on Fried and the way it contrasts with Harrison. I additionally look take a look at the potential for a circuit cut up on hashish gun rights or gun management points.
Earlier than speaking about Fried, it’s necessary to grasp two issues. The primary is what I stated above – that federal regulation deems hashish customers to be “prohibited individuals” who could not legally personal or possess firearms. The regulation at hand is the Gun Control Act of 1968, and the supply as codified in federal regulation is 18 U.S.C. § 922(g)(3). The second factor is that there’s a constitutional proper to bear firearms, that means that when the federal government passes legal guidelines to limit that proper, courts have to research these legal guidelines to find out whether or not they’re constitutional. That’s exactly what Bruen did, and as I wrote in my final publish on the topic:
Beneath Bruen, courts evaluating Second Modification instances should look as to if the Second Modification’s plain textual content applies to an individual’s conduct. If it does, the individual is presumed to have Second Modification safety except the federal government can present that the restriction is “in line with the Nation’s historic custom of firearm regulation.”
As I’ll get into under, each of the Bruen questions have been at situation in each instances, although the historic custom prong is the place the courts’ views actually diverged.
Turning again to Fried, the case has a fairly fascinating forged of characters. Not like in Harrison, the place a prison defendant was difficult federal fees, the Fried plaintiffs sued earlier than any penalty had been assessed. The plaintiffs have been Florida Commissioner of Agriculture, Nicole Fried, two Florida residents who use medical marijuana beneath Florida regulation however wish to personal weapons, and a 3rd Florida resident who owned weapons however needed to entry medical marijuana.
I received’t analyze all facets of the Fried order, such because the standing arguments or Rohrabacher-Farr Modification claims. As an alternative, I’ll dive straight into the meat of the Second Modification argument. The federal government – because it did within the Harrison case – contended that marijuana customers don’t even have Second Modification rights by advantage of violating federal regulation. Whereas the Fried court docket disagreed with the federal government, it did so in a way more halfhearted manner than the Harrison court docket. As I discussed when analyzing Harrison, the truth that the federal authorities retains on contending that marijuana customers don’t even have fundamental constitutional rights just isn’t nice.
The meat of the court docket’s evaluation although turned on the historic regulation prong of Bruen. Not like the Harrison order – which went by way of a painstakingly detailed historic evaluation of U.S. gun management legal guidelines – the Fried court docket devoted just some pages of sparse evaluation with very restricted historic custom. The court docket appears to acknowledge there is no such thing as a historic custom that impacts marijuana customers instantly, however as a substitute cites Bruen for the proposition that the federal authorities want solely present an historic analogue of regulation to have interaction in comparable regulation as we speak. That is certainly what Bruen says, however on the similar time, the court docket doesn’t give a significant instance of even an historic analogue that may justify present prohibition. It merely says that as we speak’s rules are much less burdensome than prior rules as a result of marijuana customers can merely cease utilizing marijuana and regain Second Modification rights.
So on the central situation of whether or not there’s a historic custom of taking away gun rights from hashish customers, Harrison and Fried come to reverse conclusions. Understand that Fried was really determined a number of months earlier than Harrison, and apparently, Harrison didn’t cite Fried.
These instances, determined in several federal district courts in several federal appellate circuits, are each being appealed. On March 6, 2023, Marijuana Moment reported that the federal authorities filed a discover of attraction within the Harrison case (you possibly can see the discover in that linked article). In response to the article, Fried and her co-plaintiffs are additionally interesting the Fried order. What this implies is that within the coming months (or years, let’s face it, federal appeals take ceaselessly), we’ll possible have federal appellate choices that rule on the historic custom prong. To the extent that the appellate courts come to totally different conclusions, there’d be a “circuit cut up,” which might be ripe for one more U.S. Supreme Court docket gun rights case.
In the meantime, Marijuana Second additionally reported that congressional GOP representatives filed the “Second Amendment Protection Act” in January 2023. The invoice hasn’t gone very far however, if handed, it might exempt state medical marijuana customers from the gun proprietor prohibitions in part 922(d)(3) mentioned above.
