The DOJ Claims That Marijuana Use, Which Vice President Joe Biden Thinks Shouldn’t Really Be Illegal, Discredits The 2nd Amendment!
Even though the president complains about how unfair it is that pot is illegal, his administration says that people who use pot have no right to arms. President Joe Biden thinks it’s unfair that people who are convicted of simple marijuana possession face long-term consequences for something he says shouldn’t be a crime.
Biden talked about these problems last October when he announced a mass pardon for low-level federal marijuana offenders. He said this would help “thousands of people who were previously convicted of simple possession” and “who may be denied employment, housing, or educational opportunities as a result.”
Yet, the Biden administration, which took five months to start accepting applications for pardon certificates that would help with these problems, is actively defending the loss of Second Amendment rights, which is a clearly unfair consequence of using cannabis.
Under federal law, it is a felony and punishable by up to 15 years in prison for an “unlawful user” of a “controlled substance” to have guns. Even if you live in one of the 37 states where medical or recreational cannabis use is legal, you can’t use it. A federal judge in Oklahoma ruled last month that this disability is not “consistent with this Nation’s historical tradition of firearm regulation.”
This is the constitutional test set up by the Supreme Court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen. The Justice Department recently put out a notice saying that it plans to appeal the decision that said marijuana users shouldn’t be banned from owning guns.
The Biden administration’s defense of the ban is based on claims that aren’t supported by facts or history about the kind of people who deserve to use their constitutional right to keep and bear arms. The Justice Department says, among other things, that Americans who break the law, no matter how minor, are not “the people” who the Second Amendment protects.
It also says that people who use marijuana are by definition not trustworthy or good, which makes them ineligible for gun rights. The Biden administration says that the original understanding of the right to arms included exceptions that were broad enough to include people who drink any drug that lawmakers might decide to ban in the future.
It says that the law that makes it illegal for cannabis users to have guns is similar to laws that punish “drunk” people who carry guns in public places. In 2019, Donald Trump put Judge Allen Winsor on the U.S. District Court for the Northern District of Florida. In November, Winsor agreed with that last argument.
Nikki Fried, a Democrat who was Florida’s commissioner of agriculture and consumer affairs at the time, sued, saying that medical marijuana patients have a constitutional right to own guns. Winsor threw out the lawsuit. Winsor agreed with Biden’s government that they don’t. Winsor pointed to colonial and state laws from the 17th, 18th, and 19th centuries that made it illegal to carry or fire a gun “while drunk.”
The comparison wasn’t perfect because those laws only applied when people were drunk, didn’t apply in private places, and didn’t say that drunk people couldn’t own guns. Even though Fried’s Republican successor didn’t appeal Winsor’s decision, the patients who joined the lawsuit are asking the U.S. Court of Appeals for the 11th Circuit to look at their case.
Judge Patrick Wyrick of the U.S. District Court for the Western District of Oklahoma disagreed with Winsor in response to a challenge brought by an employee of a dispensary who was accused of breaking the federal law that says marijuana users can’t have guns. In a ruling on February 3, Wyrick said that the government did not meet the Bruen test.
Wyrick said that the Justice Department’s attempt to do this was based on “disgraceful historical restrictions” that kept slaves, Catholics, loyalists, and Native Americans from having guns. He didn’t agree with the government’s claim that these cases showed it was legal to deny Second Amendment rights to any group that lawmakers think is “untrustworthy.”
The Biden administration’s claim that the Second Amendment has a “vague ‘virtue’ requirement’ did not impress Wyrick either. He said that that theory is “disproven by history” and “inconsistent” with District of Columbia v. Heller, a landmark case from 2008 in which the Supreme Court made it clear that the Second Amendment gives everyone the right to keep guns for self-defense.
Even though simple marijuana possession is not a felony, the Justice Department said that illegal drug use often leads to felony behavior, even if the person has not been convicted of a felony. Wyrick was upset that the government said that a person’s Second Amendment rights could be taken away for any crime that lawmakers consider to be a felony.
“History and tradition support disarming people who have shown they are dangerous by acting violently, aggressively, or threateningly in the past,” Wyrick wrote. “There is no historical precedent for disarming someone just because they did something illegal.”
Wyrick warned that such a policy would make it easy to take away people’s Second Amendment rights. “A legislature could get around the Second Amendment by calling every crime, no matter how small, a felony,” he wrote. “This would take away the right of as many people as possible to own a gun.”
“Imagine a world in which the State of New York, to get around the bad ruling it got in Bruen, could make mowing your lawn a felony so that it could then take away the right to own a gun from all the people it had just labeled “felons,” Wyrick asked the lawyers for the government what would happen in that situation.
“Surprisingly,” he said, “when this hypothetical lawn-mowing argument was brought up and the United States was asked if such a plan would be in line with the Second Amendment, they said yes.” So, according to the federal government, a state or the federal government could make anything a felony and then take away the fundamental right to own a gun from anyone convicted of a felony, no matter how harmless the action.”
The Republican governor of Florida, Ron DeSantis, also disagrees with the position of the Biden administration. After Fried’s lawsuit, the governor’s office said, “The governor is committed to protecting the constitutional rights of Floridians, including their 2nd Amendment rights.” “Floridians shouldn’t lose a constitutional right just because they use a legal drug.”
The National Rifle Association (NRA), which for years did not challenge the rule Fried said was unconstitutional, now goes even further than DeSantis. Amy Hunter, who is in charge of media relations for the NRA, recently told me, “It would be unfair for the federal government to punish or deny a person a constitutional right for using a substance that their state has legalized as a matter of public policy.”
This argument is part of a larger debate about whether it’s legal to make it illegal for “prohibited persons” in general to have guns. In addition to “illegal” drug users, these groups include anyone who has ever been forced to get psychiatric treatment.
whether or not he was considered a threat to others and no matter what his mental health is like now, and anyone who has been convicted of a crime punishable by more than a year in prison, whether or not it involved violence and no matter how long ago it happened.
Critics of the second rule, like Supreme Court Justice Amy Coney Barrett and 3rd Circuit Judge Stephanos Bibas, say it goes further than what the Second Amendment allows. Barrett, a judge on the U.S. Court of Appeals for the 7th Circuit, wrote in a 2019 dissent that the relevant history shows that “legislatures have the power to stop dangerous people from having guns.”
“But that power only goes to dangerous people.” Due to the ongoing court cases about the gun ban for cannabis users, the 11th Circuit and 10th Circuit will have a chance to weigh in on the issue. Appeals courts, like the 7th Circuit and the 9th Circuit, have in the past given Congress the benefit of the doubt when it said that there was an exception to the Second Amendment for drugs, based on vague references to a link between drug use and violence.
But those decisions were made before Bruen set up a stricter constitutional test for gun laws. This historical test explicitly rules out “any judge-empowering “interest-balancing inquiry” that “asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s beneficial effects on other important governmental interests.”
No matter what the appeals courts decide, it is more than a little strange that the Biden administration says marijuana use is not serious enough to warrant criminal penalties or the practical problems that come with a conviction but are serious enough to nullify a constitutional guarantee. This shows how committed Biden is to a view of Second Amendment rights that makes them subject to the whims of lawmakers.
