Florida Federal Judge tosses suit challenging GUN BAN for medical marijuana patients. (POST-BRUEN)

Federal law prohibits certain people from possessing firearms. 18 U.S.C.
§ 922(g). Among them are convicted felons, fugitives from justice, and—relevant here—anyone “who is an unlawful user of or addicted to any controlled substance.” Id. As the parties agree, Florida’s medical marijuana users are “unlawful user[s] of . . . [a] controlled substance,” so this law makes it a crime for them to possess firearms. The primary issue in this case is whether the Second Amendment allows this result.

In 2016, Florida stopped criminalizing the medical use of marijuana. Many people refer to this change as Florida’s “legalizing” medical marijuana, but Florida did no such thing. It couldn’t. “Under the Supremacy Clause of the Constitution, state laws cannot permit what federal law prohibits,” United States v. McIntosh, 833 F.3d 1163, 1179 n.5 (9th Cir. 2016), and federal law still prohibits possession of marijuana—for medical purposes or otherwise, see 21 U.S.C. §§ 841(a), 844(a); see also 21 U.S.C. § 812, Sch. I(c)(10), § 812(b)(1)(B). Indeed, federal law “designates marijuana as contraband for any purpose” and “prohibit[s] entirely [its] possession.” Gonzales v. Raich, 545 U.S. 1, 24, 27 (2005).

So while Florida (like many states) has decided it will no longer criminalize medical marijuana, the simple fact is that “[a]nyone in any state who possesses, distributes, or manufactures marijuana for medical or recreational purposes . . . is committing a federal crime.” McIntosh, 833 F.3d at 1179.

As anyone driving by Florida’s many marijuana dispensaries can see, though, federal law is not always enforced. Congress has precluded the Department of Justice (for now) from prosecuting crimes that Congress (for now) chooses to maintain on the books.

Three Plaintiffs want to participate in Florida’s medical marijuana system while possessing guns. But as things stand, their use of medical marijuana—their “unlawful use[] . . . of a controlled substance”—makes any gun possession a felony, punishable by up to 15 years in prison. See 18 U.S.C. § 924(a)(8). That is the situation Plaintiffs challenge. They contend that this violates their Second Amendment right to keep and bear arms. And they contend a federal firearms prosecution would violate the Rohrabacher-Farr Amendment.

The Second Amendment guarantees the individual right to possess firearms. District of Columbia v. Heller, 554 U.S. 570, 592 (2008). Judges, scholars, and others have long debated the extent of this right, and many questions remain unresolved. But the Supreme Court recently clarified that the government cannot restrict the Second Amendment right unless “the regulation is consistent with this Nation’s historical tradition of firearm regulation.” N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2126 (2022). It is not enough to “simply posit that the regulation promotes an important interest.” Id

Put differently, if there is a tradition of regulation that is relevantly similar to the challenged laws, Plaintiffs have not stated a plausible Second Amendment claim.

The government offers two historical analogues. ECF No. 14 at 31-32. It contends that laws have traditionally kept guns from those engaged in criminal activity and from “those whose status or behavior would make it dangerous for them to possess firearms.” Id. The government offers a second historical analogue: the tradition of keeping firearms from “those whose possession of firearms the government deems dangerous.”

At bottom, the historical tradition of keeping guns from those the government fairly views as dangerous—like alcoholics and the mentally ill—is sufficiently analogous to modern laws keeping guns from habitual users of controlled substances.

Full case here: Fried v. Garland, No. 4:22-CV-164-AW-MAF, 2022 WL 16731233 (N.D. Fla. Nov. 4, 2022), https://reason.com/wp-content/uploads/2022/11/Fried-v-Garland-dismissal-11-4-22.pdf

Bruen Explained: https://youtu.be/XxLRHhss55Y

Anton Vialtsin, Esq.
LAWSTACHE™ LAW FIRM | Criminal Defense and Business Law
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