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


Manage episode 347225355 series 3389815
By Anton Vialtsin, Esq. and Anton Vialtsin. Discovered by Player FM and our community — copyright is owned by the publisher, not Player FM, and audio is streamed directly from their servers. Hit the Subscribe button to track updates in Player FM, or paste the feed URL into other podcast apps.

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

Anton Vialtsin, Esq.
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