Former Florida Agriculture Commissioner Nikki Fried’s lawsuit against Attorney General Merrick Garland and the DOJ challenging prohibitions on gun purchases and possession by those who use marijuana to treat medical conditions will not be going forward under the administration of former GOP state senator and new commissioner Wilton Simpson, though that doesn’t spell an outright end to the legal efforts to undo the federal regulation.
In a new filing in federal court, the three individual plaintiffs who sued DOJ alongside Fried’s office requested the Eleventh Circuit Court of Appeals schedule an oral argument in their case, which no longer includes the Ag Commissioner’s office as a named plaintiff.
“Beyond just the question of whether state law-compliant medical marijuana users may be constitutionally disarmed within the history and tradition of this right, questions such as what constitutes a sufficiently analogous historical regulation…remain unsettled,” the filing says. “The Appellants believe that oral argument would assist the Court in its consideration of these important issues.”
It’s not clear why Simpson declined to join the lawsuit, though he is listed as an “interested person” for the purposes of the challenge. Marijuana Moment reached out to his office, but a representative did not immediately provide comment.
A judge with the U.S. District Court for the Northern District of Florida dismissed the original lawsuit in November, saying in a 22-page opinion that the plaintiffs “have standing but that their claims fail on the merits.”
The gist of the Judge Allen Winsor’s ruling was that he sided with the Justice Department’s arguments that people who use marijuana, regardless of state law, are engaging in criminal activity at the federal level. And, therefore, there’s precedent to deny them the right to have firearms.
One of the most controversial aspects of the firearms case deals with a recent U.S. Supreme Court ruling in a New York case 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.
DOJ responded earlier in the case by raising eyebrow-raising historical analogues to justify the federal ban by drawing parallels between medical cannabis patients and people who are mentally ill, panhandlers, Catholics and other groups that were previously deprived of the right to possess firearms.
“The Defendants did not meet their burden of showing that precluding marijuana users who comply with their state medical marijuana laws from possessing or purchasing a firearm fits within the history and tradition of the Second Amendment,” the new filing says. “The historical analogies the Appellees sought to draw were neither distinctly nor relevantly similar to the Challenged Laws.”
In a September filing, DOJ seemed to partially back off its prior assertions that cannabis makes people more inclined toward violent crime in general, but 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.
I always thought Fried’s involvement in the lawsuit as a bit of a political stunt designed to help her in her failed bid to become the Democratic gubernatorial nominee last year, but it was still one of the best things she did in her role as Ag Commissioner. It’s disappointing that Simpson isn’t continuing the department’s official objections to current DOJ policy, but its not that surprising given that many Republicans have been increasingly reluctant to do anything that could be seen as promoting drug use over the past few years, even if they previously supported medical marijuana laws.
If Simpson’s office won’t officially be involved in the litigation going forward, I hope that the Department of Agriculture and Consumer Services will at least submit an amicus brief in support of those medical marijuana users in Florida who are seeking access to their fundamental right to keep and bear arms, particularly with Joe Biden’s DOJ taking the position that marijuana users are “too dangerous” to possess a firearm.
Of course, the ideal solution would be for Congress to either remove cannabis as a Schedule 1 drug or, failing that, approve the GRAM (Gun Rights and Marijuana) Act that would specifically allow individuals who live in states where medical and/or recreational marijuana has been decriminalized or legalized to lawfully possess a firearm under federal law. That legislation was first introduced by the late Rep. Don Young of Alaska and went absolutely nowhere in the last session of Congress, but Rep. Alex Mooney of West Virginia has authored a new version for the current session, and it would be fantastic if the slender GOP majority in the House allows the bill to come up for a vote.
I’m not convinced that will happen, but I’ve reached out to my own representative to urge him to sign on to Mooney’s legislation, which makes sense to me both from a Second Amendment standpoint and for more personal reasons. My wife is being treated for Stage IV lung cancer, and it’s absolutely absurd to me that she is forced to choose between something that can alleviate the awful side effects of the cancer-fighting drugs she’s taking or exercising her fundamental right to keep and bear arms in self-defense. While the courts may provide her and millions others with relief eventually, Congress has the power to undo these damaging policies right now. Whether congresscritters have the will do so, on the other hand, is an open question.
Originally Posted on: https://bearingarms.com/camedwards/2023/02/01/new-florida-ag-commissioner-gun-ban-medical-marijuana-n66861