On October 28, Delaware Governor John Carney vetoed a bill intended to allow individuals with a valid medical marijuana prescription to possess a gun under state law. The bill, H.B. 276, would have “ma[de] clear that an individual is not disqualified under Delaware law from possessing a firearm because the individual is a registered qualifying patient under the Delaware Medical Marijuana Act, if the registered qualifying patient is not” otherwise disqualified under state law. The bill had passed by comfortable majorities in the state house and senate.
In a letter explaining his decision to veto the bill, Governor Carney wrote that the bill “risks creating confusion about the rights of medical marijuana patients – under federal law – to purchase firearms here in Delaware.” As Governor Carney noted, marijuana remains illegal under federal law and federal law disqualifies unlawful drug users from possessing firearms. The Governor stated that, in his opinion, Delaware law already does not prohibit individuals from possessing guns based on medical marijuana use (because medical marijuana is not defined as a controlled substance under state law)—so, he believes the bill would both add nothing to the state’s framework and risk confusing those who are still prohibited from possessing guns under federal law.
The Delaware bill is not the first of its kind to be introduced in recent years at the state level. In 2019, Colorado legislators introduced a sweeping bill that would “clarif[y] that a person is not prohibited from carrying a firearm [under state law] if the prior conviction was for the possession or use of marijuana that was lawfully possessed or used pursuant to the Colorado constitution.” The Colorado bill, which did not advance in the state legislature, purported to go even further and deem an individual not ineligible to possess a gun under federal law based solely on medical marijuana use within Colorado.
This has all occurred amid growing momentum for marijuana legalization at the federal level. Earlier in October, President Biden issued a blanket pardon to those convicted of simple possession of marijuana offenses under federal law. President Biden’s announcement of the pardon also “ask[ed] 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.” More states continue to legalize marijuana for both medical and recreational use—per one source, at least 37 states plus D.C. currently permit marijuana use for medical purposes, and 19 states plus D.C. permit recreational use. These developments naturally lead to the following question: as states (and, possibly, the federal government) move toward marijuana legalization in some form, will marijuana users whose use is legal under state law be allowed to buy and possess firearms?
Federal law currently bans an individual who “is an unlawful user of or addicted to any controlled substance” from possessing a firearm. Marijuana remains a controlled substance at the federal level, and courts have interpreted the “unlawful user” prohibition to bar even a one-time marijuana user from possessing a gun. In fact, this very issue is the subject of a pending petition for certiorari: in Carnes v. United States, the petitioner challenges application of this standard and argues for a “regular-use” threshold. In 2011, ATF issued a letter to federal firearms dealers confirming that even those individuals using medical marijuana permitted by state law are “unlawful users” and are “prohibited by Federal law from possessing firearms or ammunition.” And in a 2016 decision in Wilson v. Lynch, the Ninth Circuit rejected a challenge by a medical marijuana patient who had sought to purchase a firearm, applying intermediate scrutiny and relying in part on empirical evidence and legislative determinations that “support the link between drug use and violence.”
An the state level, a 2011 Oregon Supreme Court decision held that the federal “unlawful user” prohibition did not preempt an Oregon requirement that the local sheriff issue a concealed-carry license to an otherwise-qualified applicant who was a user of medical marijuana. The outcome in the Oregon case was that the sheriff must issue the permit if the applicant is otherwise-qualified, although the license holder is still subject to the federal ban and can be arrested for violating it. Federal courts, however, have generally rejected challenges to the “unlawful user” prohibitor by medical marijuana users in states where medical use is legal, as Dru Stevenson described in a prior blog post. (For more background information, see this February 2022 essay by Jonathan McGowan in the Harvard Journal of Law & Public Policy.)
One potential clue as to how the conflict between federal gun laws and legal marijuana use may play out comes in an ongoing lawsuit in Florida filed by Florida’s Agriculture Commissioner Nikki Fried and other medical marijuana users. The case, Fried v. Garland in the Northern District of Florida, was filed in April 2022. The plaintiffs argue that the federal “unlawful user” prohibition violates the Second Amendment and frustrates the implementation of Florida’s medical marijuana program.
The initial complaint argued in largely empirical terms that studies showing a link between drug use and violent crime are of limited value in a context where users legally purchase marijuana for medical use. However, in light of Bruen, the subsequent briefing has focused on historical arguments. The United States argues in it motion to dismiss that medical marijuana users are not law-abiding citizens and therefore outside the scope of the Second Amendment, and that “disarming unlawful drug users is consistent with history and tradition.” The government’s brief argued both in broad strokes that there is a historical tradition of disarming dangerous and unvirtuous citizens, and more narrowly that “a long tradition exists of viewing intoxication as a condition that renders firearms possession dangerous, and accordingly restricting the firearms rights of those who become intoxicated”—citing colonial and state laws stretching from 1655 to 1899. In response the plaintiffs contend that:
Defendants can point to no law from or near [the Founding Era] that fought intoxication by wholly disarming individual[s] who generally drank alcohol, used marijuana, or ingested any other substance. Instead, the cited historical regulations they [sic] sought to keep firearms out of individuals’ hands while they were under the effect of the substance.
Notably, the plaintiffs also devote substantial space to detailing “[f]actual evidence disputing the hypothesis that medical marijuana patients are violent,” including crime statistics and medical guidance. A hearing on the motion to dismiss was held on October 12, but the judge has yet to rule.
I’ll offer a couple of observations about the path forward in this area. First, the Fried plaintiffs seem to have the better of the historical argument here if a court requires analogues dealing specifically with intoxicating substances, rather than conducting the inquiry at a higher level of generality. It is difficult to say that historical laws banning the possession or purchase of guns while intoxicated support a blanket ban on a medical marijuana user, whether a one-time or regular user, possessing guns even when not under the influence of marijuana—although these historical laws almost certainly support prohibiting possession while using marijuana. With that said, it is difficult to envision how such a regime would operate effectively in the real world. For example, it is much more administrable from a legislative perspective to ban guns in establishments serving alcohol rather than banning possession on an individual basis when a person is intoxicated.
Second, the post-Bruen briefing in Fried is notable for its continued focus on empirical studies and statistics. For example, the plaintiffs argue that “[t]he Defendants have not offered evidence indicating that state-compliant medical marijuana use leads to violence.” The plaintiffs clearly believe they have the better of that argument, because studies show a link only between violent crime and illicit drug transactions (in their view). But, after Bruen, the relevance of such evidence is a matter of open debate. As Center Co-Director Darrell Miller and others have written, “[i]f we understand the principle at the founding era as prohibitions on dangerousness, then this seems like an area with a clear role for empirical evidence under the historical translation framework.” In other words, empirical data is still needed to determine which groups are properly deemed dangerous today. Fried clearly illustrates how such evidence might enter the picture, and why even those challenging gun laws may continue to make empirical arguments. If a historical principle of restricting dangerous individuals from possessing guns is established, then a court must consider empirical data in some form to see whether the modern law at issue fits into this framework—or whether, as the plaintiffs in Fried argue, the law is overbroad in encompassing many non-dangerous drug users.
[Addendum: This past Friday, November 4, District Judge Allen Winsor issued an order granting the government’s motion to dismiss in Fried. The judge “assume[d] . . . that [medical marijuana users] are included in ‘the people’ the Second Amendment protects.” Because marijuana use remains criminal under federal law notwithstanding the Rohrabacher-Farr Amendment, the “tradition of disarming those engaged in criminal conduct” applies to medical marijuana users, the judge found. He also rejected the plaintiffs’ argument that the government was required to point to “an analogous situation in or around 1791 or 1868 where a person who only took actions for which they could not be criminally punished would be considered not ‘law-abiding.’” Judge Winsor found that this standard “demands too much specificity in the historical tradition” and would potentially make the government’s case for disarming any drug user turn on the likelihood of federal prosecution for a drug-specific offense (rather than simply whether that drug is scheduled under federal law). The burden of the current federal restriction, Judge Winsor said, was also “arguably less onerous” than historical laws which permanently removed Second Amendment rights. As to the government’s reliance on historical laws “restricting gun possession of the intoxicated” and mentally ill, Judge Winsor similarly agreed with the government that “habitual drug users are analogous to other groups the government has historically found too dangerous to have guns.” Finally, the judge rejected the claim that federal spending to enforce the “unlawful user” prohibition violates the Rohrabacher-Farr Amendment, even if such enforcement would have an “ancillary deterrent effect” on gunowners seeking to use medical marijuana.]