The U.S. Department of Justice has filed a brief in a federal appeals court as part of an ongoing lawsuit over the government’s ban preventing medical marijuana patients from possessing firearms.
Many of DOJ’s arguments in the brief filed on Wednesday mirror points that the agency made in earlier filings in the case, including in a federal district court that dismissed the lawsuit that’s now being appealed by its plaintiffs. But the latest document places new emphasis on the “wide-ranging consequences” that the Biden administration says would result from a ruling that favors the plaintiffs.
Those plaintiffs are medical cannabis patients in Florida who are challenging the constitutionality of the firearms ban, arguing that it violates the Second Amendment on several grounds.
Notably, the department said that because plaintiffs “attack the constitutionality of a longstanding provision of the Gun Control Act,” the federal government “believes oral argument is therefore appropriate.” Earlier in the case, DOJ had simply moved for dismissal, but it appears they’re now recognizing the need for the appeals court to take a serious look at the issue before making a decision.
Meanwhile, a different federal court separately ruled last month that the ban on marijuana consumers possessing guns is unconstitutional in a case that’s also being appealed.
In the Florida case, part of the plaintiffs’ argument is based around a recent U.S. Supreme Court ruling in a Second Amendment case our of New York where justices generally created a higher standard for policies that seek to impose restrictions on gun rights.
The ruling states that any such restrictions must be consistent with the historical context of the Second Amendment’s original 1791 ratification.
Plaintiffs contend that there is not an adequate historical analogue that justifies preventing state-registered medical marijuana patients from possessing guns. DOJ disputes that point, drawing a parallel between laws against firearm possession by people who are intoxicated from alcohol.
“Although drugs like marijuana, cocaine, and fentanyl were not in common use at the founding, contemporaries recognized that alcohol renders users unable to safely bear arms and perceived those who regularly became intoxicated as threatening the social and political order,” it said.
Notably, the department is also now suggesting that if the U.S. Court of Appeals for the Eleventh Circuit accepts the plaintiffs’ argument, it would bar the government from imposing a firearms ban on all habitual users of controlled substances.
“Although plaintiffs seek to use marijuana, their arguments on this score are not limited to marijuana and would instead cast doubt on Congress’s ability to disarm unlawful users of any controlled substance, including cocaine, fentanyl, or methamphetamines,” the brief says.
In past filings, DOJ has offered other eyebrow-raising historical parallels to support the firearms ban for cannabis patients. For example, it compared such patients to people who are mentally ill, panhandlers, Catholics and other groups that were previously deprived of the right to possess firearms.
For this latest brief, the federal government said that the ratifiers of the Second Amendment “understood that just as immaturity and mental illness deprive individuals of reason, so do intoxicating substances.” It cited historic references to “children,” “lunatics” and “idiots” who had their rights restricted.
“If adopted, plaintiffs’ contention would carry wide-ranging consequences,” DOJ said. “Nothing in Second Amendment doctrine or history justifies that extraordinary result.”
The defendants’ arguments in this case have gradually shifted over time. For example, last year, the department seemed to partially back off its prior assertions that cannabis makes people more inclined toward violent crime in general—though it did say that those who consume marijuana are intrinsically too dangerous to own guns because they’re breaking federal law, even if it’s a misdemeanor offense.
The next step in the federal appeals case is for plaintiffs to submit their own brief, which is due next month.
Former Florida Agriculture Commissioner Nikki Fried (D), who now serves as chairwoman of the Florida Democratic Party, first raised the lawsuit against DOJ last year in her capacity as a state official. She’s no longer party to the lawsuit since leaving office, and her GOP successor has declined to get involved.
While the Justice Department’s latest brief contains some new arguments and references, missing from the filing is acknowledgement of the fact that a separate federal court ruled last month that the firearms ban for any cannabis consumer is unconstitutional.
Earlier this month, the government appealed that decision by the U.S. District Court for the Western District of Oklahoma to the U.S. Court of Appeals for the Tenth Circuit.
Advocates have argued that the fight to end the federal ban for cannabis consumers isn’t about expanding gun rights, per se. Rather, it’s a matter of constitutionality and public safety.
Supporters of the Florida lawsuit have argued that the Alcohol, Tobacco, Firearms, and Explosives Bureau (ATF) requirement effectively creates an incentive for cannabis consumers to either lie on the form, buy a gun on the illicit market or simply forgo their right to bear arms.
In 2020, ATF issued an advisory specifically targeting Michigan that requires gun sellers to conduct federal background checks on all unlicensed gun buyers because it said the state’s cannabis laws had enabled “habitual marijuana users” and other disqualified individuals to obtain firearms illegally.
In light of the federal court’s ruling last month, a GOP Pennsylvania senator recently encouraged law enforcement to take steps to remove state barriers to gun ownership for cannabis consumers, focusing on medical marijuana patients.
In Maryland, a key House committee also held a hearing last month on a bill to protect gun rights for medical cannabis patients in the state.
Meanwhile, a GOP congressman filed a bill in January that seeks to allow medical cannabis patients to purchase and possess firearms. The legislation was also introduced in the 116th Congress but was not ultimately enacted.
Read DOJ’s latest brief in the firearms and medical cannabis patients case below:
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