Federal legislation prohibits marijuana customers from proudly owning or possessing firearms– even in states with authorized marijuana. Over the previous couple of months, totally different federal courts issued essential orders in hashish gun rights instances which might problem this established order. Each instances centered on the 2022 U.S. Supreme Courtroom case New York State Rifle & Pistol Association, Inc. v. Bruen, and each reached wildly totally different outcomes on basically the identical authorized and even factual points.
Final month, I wrote a publish entitled “Will Gun Management Legal guidelines Soften for Hashish Customers?“, the place I addressed a type of selections, United States v. Harrison, out of the Western District of Oklahoma (a part of the federal Tenth Circuit). Right this moment, I wish to look at the opposite case, Fried v. Garland, out of the Northern District of Florida (a part of the federal Eleventh Circuit). Under, I supply some ideas on Fried and the way it contrasts with Harrison. I additionally look have a look at the potential for a circuit break up on hashish gun rights or gun management points.
Earlier than speaking about Fried, it’s vital to know two issues. The primary is what I stated above – that federal legislation deems hashish customers to be “prohibited individuals” who might not legally personal or possess firearms. The legislation at hand is the Gun Control Act of 1968, and the supply as codified in federal legislation is 18 U.S.C. § 922(g)(3). The second factor is that there’s a constitutional proper to bear firearms, which means that when the federal government passes legal guidelines to limit that proper, courts have to research these legal guidelines to find out whether or not they’re constitutional. That’s exactly what Bruen did, and as I wrote in my final publish on the topic:
Underneath Bruen, courts evaluating Second Modification instances should look as to whether the Second Modification’s plain textual content applies to an individual’s conduct. If it does, the particular person is presumed to have Second Modification safety until the federal government can present that the restriction is “per the Nation’s historic custom of firearm regulation.”
As I’ll get into beneath, each of the Bruen questions had been at problem in each instances, although the historic custom prong is the place the courts’ views actually diverged.
Turning again to Fried, the case has a reasonably attention-grabbing forged of characters. Not like in Harrison, the place a legal defendant was difficult federal prices, the Fried plaintiffs sued earlier than any penalty had been assessed. The plaintiffs had been Florida Commissioner of Agriculture, Nicole Fried, two Florida residents who use medical marijuana underneath Florida legislation however wish to personal weapons, and a 3rd Florida resident who owned weapons however wished to entry medical marijuana.
I gained’t analyze all facets of the Fried order, such because the standing arguments or Rohrabacher-Farr Modification claims. As a substitute, I’ll dive straight into the meat of the Second Modification argument. The federal government – because it did within the Harrison case – contended that marijuana customers don’t even have Second Modification rights by advantage of violating federal legislation. Whereas the Fried courtroom disagreed with the federal government, it did so in a way more halfhearted manner than the Harrison courtroom. As I discussed when analyzing Harrison, the truth that the federal authorities retains on contending that marijuana customers don’t even have fundamental constitutional rights shouldn’t be nice.
The meat of the courtroom’s evaluation although turned on the historic regulation prong of Bruen. Not like the Harrison order – which went via a painstakingly detailed historic evaluation of U.S. gun management legal guidelines – the Fried courtroom devoted just some pages of sparse evaluation with very restricted historic custom. The courtroom appears to acknowledge there isn’t a historic custom that impacts marijuana customers immediately, however as an alternative cites Bruen for the proposition that the federal authorities want solely present an historic analogue of regulation to have interaction in comparable regulation at the moment. That is certainly what Bruen says, however on the identical time, the courtroom doesn’t give a significant instance of even an historic analogue that will justify present prohibition. It merely says that at the moment’s laws are much less burdensome than prior laws as a result of marijuana customers can merely cease utilizing marijuana and regain Second Modification rights.
So on the central problem of whether or not there’s a historic custom of taking away gun rights from hashish customers, Harrison and Fried come to reverse conclusions. Remember the fact that Fried was really determined a number of months earlier than Harrison, and curiously, Harrison didn’t cite Fried.
These instances, determined in several federal district courts in several federal appellate circuits, are each being appealed. On March 6, 2023, Marijuana Moment reported that the federal authorities filed a discover of attraction within the Harrison case (you may see the discover in that linked article). In line with the article, Fried and her co-plaintiffs are additionally interesting the Fried order. What this implies is that within the coming months (or years, let’s face it, federal appeals take eternally), we’ll probably have federal appellate selections that rule on the historic custom prong. To the extent that the appellate courts come to totally different conclusions, there’d be a “circuit break up,” which might be ripe for one more U.S. Supreme Courtroom gun rights case.
In the meantime, Marijuana Second additionally reported that congressional GOP representatives filed the “Second Amendment Protection Act” in January 2023. The invoice hasn’t gone very far however, if handed, it could exempt state medical marijuana customers from the gun proprietor prohibitions in part 922(d)(3) mentioned above.