Medical Marijuana Users May Retain Second Amendment Rights

From yesterday’s Eleventh Circuit decision in Fla. Comm’r of Ag. v. Attorney General, written by Judge Elizabeth Branch and joined by Judges Robert Luck and Gerald Bard Tjoflat:

[T]wo Florida medical marijuana users who wish to purchase guns and one gun owner who wishes to participate in Florida’s medical marijuana program brought a pre-enforcement action seeking declaratory relief that 18 U.S.C. § 922(d)(3) and (g)(3), which prohibit unlawful drug users from possessing or being sold firearms, are unconstitutional as applied to them…. [T]he district court conducted Bruen’s history-and-tradition test to determine if the challenged statutes were similar to historical gun regulations. The district court concluded that the laws and regulations at issue in this case were consistent with this Nation’s historical tradition of firearms regulation and therefore did not violate the Second Amendment….

[We conclude that,] when viewed in the light most favorable to the plaintiffs, the allegations in the operative complaint do not lead to the inference that the plaintiffs are comparatively similar to either felons or dangerous individuals—the two historical analogues the Federal Government offers in its attempt to meet its burden. We therefore vacate the district court’s order and remand for further proceedings consistent with this opinion….

[T]he FAC [First Amended Complaint] contains no allegations regarding either the frequency of use or effects that consumption of marijuana has on [plaintiffs] Cooper and Hansell—or other medical marijuana users. The FAC’s only allegation about the nature of Cooper’s and Hansell’s use is that they use marijuana only as permitted by Florida law. And while the district court labeled them as “habitual drug users,” presumably akin to addicts, the FAC says no such thing, stating simply that Cooper and Hansell use marijuana for the medical benefits they receive and in reliance on the fact that they will not be criminally prosecuted for their medicinal use.

Viewing these allegations in the light most favorable to Cooper and Hansell, it appears they use rational thought in making their decision to use marijuana and would stop their marijuana use if they were placed at risk of criminal prosecution. Accordingly, Cooper’s and Hansell’s mental state is a far cry from that of addicts and alcoholics whose actions are controlled by their need to use alcohol or drugs. See United States v. Yancey (7th Cir. 2010) (affirming the constitutionality of 18 U.S.C. § 922(g)(3) as applied to a criminal defendant who “had been smoking marijuana daily” for two years, reasoning that “habitual drug users” like the defendant were “more likely to have difficulty exercising self-control”).

For a similar conclusion by the Fifth Circuit (favorably cited by yesterday’s Eleventh Circuit decision), see this post about U.S. v. Connelly.

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