In light of a recent U.S. Supreme Court ruling on gun rights, the Justice Department has asked for more time to respond to a lawsuit challenging the federal ban on medical marijuana patients purchasing and possessing firearms.
That suit, which was brought about by Florida Agriculture Commissioner and Democratic gubernatorial candidate Nikki Fried, along with a handful of other plaintiffs, argues that federal policy barring people who admit to using cannabis in compliance with state laws is unconstitutional. DOJ was initially due to file its respond to the suit last week, but a Supreme Court ruling in a New York case has led the Biden administration to request an extension in the deadline for its filing in cannabis dispute, and the plaintiffs have agreed.
An attorney for the plaintiffs told Marijuana Moment that they are also aware of possible implications of the new Supreme Court ruling on their case, and that they intend to file an amended complaint in light of that. That’s part of the reasoning behind their decision not to contest DOJ’s deadline extension request.
“On June 23, 2022, the Supreme Court issued its decision in New York State Rifle & Pistol Association, Inc. v. Bruen,” DOJ wrote in its motion for the deadline change. “In Bruen, the Supreme Court rejected the ‘two-step’ framework for addressing Second Amendment claims that the Eleventh Circuit and other circuits had adopted, and set forth a different test for resolving Second Amendment claims.”
That said, DOJ made clear it still intends to move to dismiss the cannabis case from Fried, but it just needs more time in light of the Supreme Court ruling.
“Defendants request an extension of 31 days, to and including July 25, 2022, so that Defendants can review Bruen, analyze its relevance to this case, and apply Bruen in its forthcoming motion to dismiss,” the latest motion says.
“This motion is made in good faith and not for purposes of delay,” DOJ Principal Deputy Assistant Attorney General Brian Boynton said in the filing. “The requested extension will not prejudice the Plaintiffs.”
Because the nation’s highest court overruled the New York law restricting open carry, the new precedent could bolster the Fried case, which the commissioner and key gun reform advocates have told Marijuana Moment is principally about promoting public safety while preserving the constitutional rights of medical cannabis patients.
In a recent interview with Marijuana Moment, Fried emphasized that this “is not about guns, per se.”
“This is about the fact that, for decades, marijuana patients have been discriminated against—that they see their rights not being completely afforded to them, whether it is on housing or access to banking or employment,” she said. “And this is one of their other rights.”
As it stands, in order to buy a gun, people are required to fill out a federal form that explicitly asks about the use of illegal drugs—including cannabis. Those who admit to marijuana use are ineligible to make the purchase and could face up to five years in prison if they lie, regardless of state cannabis laws.
That’s a major problem, Fried and other advocates say, because it creates an incentive for people who are lawfully using medical cannabis in their state to either fill our the form falsely, seek out firearms in the illicit market or simply accept the denial of their constitutional rights.
Removing that marijuana stipulation from the federal background check form, in contrast, would bring more people above board and promote safety, Fried says.
“If we can work with the [Biden] administration on changing this, it will actually make sure that everybody has to complete a thorough background check when it comes to purchasing a firearm,” the commissioner said. “And so the reality of the end result is that people will be more safe.”
It took some work to educate the gun safety community about this particular issue. Fried has an established record as a gun reform advocate, and so when activists initially heard about this proposal to give medical cannabis patients lawful access to firearms, some were taken aback. The commissioner participated in roundtables to help inform those who were reluctant, and key advocates have come around to the idea.
Now the ball is in the Justice Department’s court, albeit with a slightly pushed back timeline. Although the department indicated in its latest motion that it intends to move to dismiss the case, White House officials have recently recognized that the policy of blanket cannabis prohibition has failed.
A spokesperson for the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), which is listed as a defendant in Fried’s lawsuit, said the agency is “unable to comment on this while in litigation” in an earlier email to Marijuana Moment. The Justice Department has yet to respond to a request for comment.
Fried said that her office has had “little communication with the Department of Justice since we filed” but has reached out to Biden administration officials in an attempt to educate them on the topic.
“We had offered a conversation with any of their attorneys, or even somebody from the White House, to continue briefing them on it,” she said, “because, at the end of the day, what we are looking for is for federal government to take action on on cannabis reform.”
Fried brought the lawsuit alongside two medical marijuana patients in the state, as well as Neill Franklin, a retired police officer and former executive director of the Law Enforcement Action Partnership (LEAP) who has declined to use medical cannabis despite its therapeutic value for pain he experiences because of the potential gun rights ramifications.
The lawsuit states that the DOJ and ATF’s “irrational, inconsistent, and incoherent federal marijuana policy undermines Florida’s medical marijuana and firearms laws and prevents Commissioner Fried from ensuring that Floridians receive the state rights relating to them.”
Denying Second Amendment rights to people who lawfully use medical marijuana in compliance with state law “does not survive any level of appropriate legal scrutiny,” it says.
A key component of the legal challenge is based on a unique interpretation of a congressional spending bill rider known as the Rohrabacher-Farr Amendment, which prevents the Justice Department from using federal funds to interfere in the implementation of state medical cannabis programs.
By preventing people like Franklin from using medical marijuana without risking the loss of their right to buy firearms, the federal government is effectively violating that rider by blocking Florida from adding new patients to grow its program, the suit says.
The suit seeks to enjoin the federal agencies from enforcing the gun ban based on state-legal medical marijuana use on the basis that the policy violates the Second Amendment and the congressional rider.
It also specifically challenges the justification of the ban, arguing that marijuana use does not make a person more inclined to violent or dangerous behavior.
In 2020, ATF issued an advisory specifically targeting Michigan that requires gun sellers to conduct federal background checks on all unlicensed gun buyers because it said the state’s cannabis laws had enabled “habitual marijuana users” and other disqualified individuals to obtain firearms illegally.
There have been previous efforts in Congress to specifically protect medical cannabis patients against losing their right to purchase and possess guns, but those efforts have not been enacted.
Read DOJ’s latest filing in the medical marijuana and gun rights lawsuit below:
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