But what happens when rights intersect?
A prominent current example is barreling toward the U.S. Supreme Court, and it involves two of the major issues of our time. One is the federal government’s war on drugs, and the other is one of the most fundamental freedoms in American society — the right to keep and bear arms.
The two are increasingly colliding in the halls of justice. Why? The federal government decrees that users of illegal drugs, including marijuana, are prohibited from possessing firearms.
It was fairly recent when this was a cut-and-dried situation. Cannabis was illegal everywhere, so the patchwork quilt of statutes that is our Republic agreed.
But no more.
Medical marijuana is now legal in 38 states, the District of Columbia and four U.S. territories. There are currently more than 3.5 million people participating in official state programs to use the substance as a treatment for many ailments.
Patients utilize it to cope with seizures, multiple sclerosis, Crohn’s disease, sleep disorders, pain, post-traumatic stress disorder and a host of other issues. And this number is far from the total as several states, including heavily populated California, do not require registration to be treated by medical marijuana.
Then there’s the two dozen states that legalized marijuana for recreational use. Every single user, the millions of people whose maladies are treated by cannabis and the millions more who legally use it for whatever reason, are legally deprived of their Second Amendment rights.
Unlike 38 states, Washington still considers marijuana to have no medical benefit. Therefore, when an individual attempts to purchase a firearm, they are asked about marijuana on the mandatory forms. While cases are few, there is always the chance that an otherwise law-abiding citizen could face federal prosecution for what is perfectly legal where they reside.
Lying on these forms is a felony punishable by up to 10 years in prison as well as fines.
There are indications, however, that the tide is turning for millions of Americans. In August, the New Orleans-based Fifth Circuit Court of Appeals found the federal law unconstitutional as it related to a marijuana user.
And in early October, the 11th U.S. Circuit Court of Appeals heard arguments over the constitutionality of banning those who partake from owning weapons. The three-judge panel was told by the Florida plaintiffs’ attorney, William Hall, that his clients’ Second Amendment freedoms are being trampled by the federal law.
The state in 2016 legalized medical marijuana. Further, the Rohrabacher-Farr Amendment prohibits the Department of Justice from prosecuting or otherwise interfering with state programs that dispense marijuana for medical purposes. The DOJ is also not allowed to prosecute individuals who are part of the program.
Hall noted that last year’s landmark Bruen decision by the U.S. Supreme Court set the bar for gun regulation at a level where current federal law cannot reach. Banning sober marijuana users from firearm possession falls far outside the “nation’s historical tradition of firearm regulation.”
As Hall said, disarming sober people is “not a bridge too far. That’s about 10 bridges too far.” Yes, the government has a justifiable concern with the drunk or mentally ill owning guns, but laws have never extended to sober persons of sound mind.
As Judge Robert Luck noted when the panel heard arguments, historical laws centered on “being intoxicated at that moment and did not extend past the moment of intoxication.”
Another panel judge, Elizabeth Branch, remarked that marijuana remains a Schedule 1 drug. This possibly indicated her reluctance to side with the plaintiffs.
If the appeals court rules against the plaintiffs and creates a judicial split with the earlier Fifth Circuit decision, it could propel the issue to the Supreme Court. The constitutional rights of millions hang in the balance.
