The entrance to a popular North Jersey gun range has a sign that reads, “Bang or bong, but you can’t do both.” While it might be obvious that it’s inadvisable to be under the influence of drugs or alcohol while operating firearms, the sign also underscores a significant divide between the Federal government and many states. While 38 states have legalized medical marijuana, there is still a federal prohibition on gun ownership by medical marijuana users.
A lawsuit by gun rights group, The Second Amendment Foundation (SAF), aims to change that. SAF filed suit today against Attorney General Merrick Garland, the heads of the FBI and ATF, and the U.S. Government.
As of this writing, marijuana (cannabis) still appears on the DEA’s Schedule 1, which it defines as, “drugs, substances, or chemicals are defined as drugs with no currently accepted medical use and a high potential for abuse.” Drugs on this list are illegal at the federal level, including heroin and LSD.
The problem for gun-owners manifests as a catch-22 over which the Federal Government has shown a willingness to prosecute. ATF Form 4473 used during background checks to purchase a firearm emphatically states the following:
Warning: The use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medicinal or recreational purposes in the state where you reside.
The result for gun owners is tragically clear: Medical relief or self defense. But you can’t have both.
The ubiquitous use of marijuana has very much been encouraged by the Federal Government.
In October of 2022, the White House announced a three-step plan softening its position on marijuana users and offenses. The plan specified:
- pardoning all prior Federal offenses of simple possession of marijuana
- urging all Governors to do the same with regard to state offenses
- directing the Secretary of Health and Human Services and the Attorney General to initiate the administrative process to review expeditiously how marijuana is scheduled under federal law
The US Food and Drug Administration did as requested and recently issued a letter signed by Assistant Secretary for Health, Rachel Levine that concluded: “Based on my review of the evidence and FDA’s recommendation, it is my recommendation as the Assistant Secretary for Health that marijuana should be placed in Schedule III of the CSA.”
Also in 2022, the US House of Representatives passed H.R.3617, or the “MORE” Act “Marijuana Opportunity Reinvestment and Expungement,” which would remove marijuana from the list of scheduled substances and broadly decriminalize it. It has not been brought up for a vote in the Senate.
Simultaneously, more and more states have adopted laws either allowing for recreational and/or medical use of marijuana. According to a CNN report, “Twenty-four states, two territories and DC have legalized cannabis for adult recreational use, and 38 states allow medical use of cannabis products.”
Last year, U.S. District Judge Patrick Wyrick, effectively struck down the federal law prohibiting marijuana users from possessing firearms on the basis that it is unconstitutional. The case originated in Oklahoma where marijuana use is legal, and Judge Wyrick heavily referenced the Bruen Supreme Court Decision in his reasoning:
The mere use of marijuana carries none of the characteristics that the Nation’s history and tradition of firearms regulation supports,” Wyrick wrote, asserting the government was wrong to use the “mere status as a user of marijuana justifies stripping him of his fundamental right to possess a firearm.”
The SAF complaint, called Greene v. Garland, similarly references Bruen and states:
The current restrictions found in 18 U.S.C. §§ 922(g)(3), (d)(3), and their implementing regulations, as they pertain to medicinal marijuana, infringe upon the individual’s right to keep and bear arms, as they arbitrarily deny entire classes of persons in direct defiance of Heller and Bruen and lack any direct or analogous historical support deeply rooted in this nation’s history and tradition.
We will continue to follow this story.