A Cannabis Gun Control Circuit Split is Coming

Federal law prohibits marijuana users from owning or possessing firearms– even in states with legal marijuana. Over the last few months, different federal courts issued critical orders in cannabis gun rights cases which could challenge this status quo. Both cases centered on the 2022 U.S. Supreme Court case New York State Rifle & Pistol Association, Inc. v. Bruen, and both reached wildly different outcomes on essentially the same legal and even factual issues.

Last month, I wrote a post entitled “Will Gun Control Laws Soften for Cannabis Users?“, where I addressed one of those decisions, United States v. Harrison, out of the Western District of Oklahoma (part of the federal Tenth Circuit). Today, I want to examine the other case, Fried v. Garland, out of the Northern District of Florida (part of the federal Eleventh Circuit). Below, I offer some thoughts on Fried and how it contrasts with Harrison. I also look look at the potential for a circuit split on cannabis gun rights or gun control issues.

Before talking about Fried, it’s important to understand two things. The first is what I said above – that federal law deems cannabis users to be “prohibited persons” who may not legally own or possess firearms. The law at hand is the Gun Control Act of 1968, and the provision as codified in federal law is 18 U.S.C. § 922(g)(3). The second thing is that there is a constitutional right to bear firearms, meaning that when the government passes laws to restrict that right, courts have to analyze those laws to determine whether they are constitutional. That is precisely what Bruen did, and as I wrote in my last post on the subject:

Under Bruen, courts evaluating Second Amendment cases must look to whether the Second Amendment’s plain text applies to a person’s conduct. If it does, the person is presumed to have Second Amendment protection unless the government can show that the restriction is “consistent with the Nation’s historical tradition of firearm regulation.”

As I’ll get into below, both of the Bruen questions were at issue in both cases, though the historical tradition prong is where the courts’ views really diverged.

Turning back to Fried, the case has a pretty interesting cast of characters. Unlike in Harrison, where a criminal defendant was challenging federal charges, the Fried plaintiffs sued before any penalty had been assessed. The plaintiffs were Florida Commissioner of Agriculture, Nicole Fried, two Florida residents who use medical marijuana under Florida law but want to own guns, and a third Florida resident who owned guns but wanted to access medical marijuana.

I won’t analyze all aspects of the Fried order, such as the standing arguments or Rohrabacher-Farr Amendment claims. Instead, I’ll dive straight into the meat of the Second Amendment argument. The government – as it did in the Harrison case – contended that marijuana users do not even have Second Amendment rights by virtue of violating federal law. While the Fried court disagreed with the government, it did so in a much more halfhearted way than the Harrison court. As I mentioned when analyzing Harrison, the fact that the federal government keeps on contending that marijuana users do not even have basic constitutional rights is not great.

The meat of the court’s analysis though turned on the historical regulation prong of Bruen. Unlike the Harrison order – which went through a painstakingly detailed historical analysis of U.S. gun control laws – the Fried court dedicated just a few pages of sparse analysis with very limited historical tradition. The court seems to acknowledge there is no historical tradition that impacts marijuana users directly, but instead cites Bruen for the proposition that the federal government need only show an historical analogue of regulation to engage in similar regulation today. This is indeed what Bruen says, but at the same time, the court does not give a meaningful example of even an historical analogue that would justify current prohibition. It simply says that today’s regulations are less burdensome than prior regulations because marijuana users can simply stop using marijuana and regain Second Amendment rights.

So on the central issue of whether there is a historical tradition of taking away gun rights from cannabis users, Harrison and Fried come to opposite conclusions. Keep in mind that Fried was actually decided several months before Harrison, and interestingly, Harrison did not cite Fried.

These cases, decided in different federal district courts in different federal appellate circuits, are both being appealed. On March 6, 2023, Marijuana Moment reported that the federal government filed a notice of appeal in the Harrison case (you can see the notice in that linked article). According to the article, Fried and her co-plaintiffs are also appealing the Fried order. What this means is that in the coming months (or years, let’s face it, federal appeals take forever), we’ll likely have federal appellate decisions that rule on the historical tradition prong. To the extent that the appellate courts come to different conclusions, there’d be a “circuit split,” which would be ripe for yet another U.S. Supreme Court gun rights case.

Meanwhile, Marijuana Moment also reported that congressional GOP representatives filed the “Second Amendment Protection Act” in January 2023. The bill hasn’t gone very far but, if passed, it would exempt state medical marijuana users from the gun owner prohibitions in section 922(d)(3) discussed above.