Asked about a federal ban on firearm ownership by people who use marijuana, Republican presidential hopeful and Florida Gov. Ron DeSantis said he believes the restriction violates the Second Amendment, attempting to portray himself as a more uncompromising defender of gun rights than former President Donald Trump, who leads polls in the Republican primary.
“Yeah, I mean, I don’t think that’s constitutional, to be honest with you,” said DeSantis, who has a law degree from Harvard Law School. “If you’re using a legal product, I don’t see how that can nullify a constitutional right.”
The comments came at a New Hampshire campaign event in response to a question from Marijuana Leadership Campaign lobbyist Don Murphy, who pointed out that “cancer patients and veterans who use cannabis with their doctor’s approval lose their Second Amendment rights.”
Importantly, DeSantis’s statement frames his answer as a hypothetical, hinging on whether marijuana is “a legal product.” While nearly half of all states have legalized cannabis for adults, it remains a prohibited, Schedule I controlled substance at the federal level. That is, of course, the very conflict that has created the current consternation around federal gun rights and state-legal marijuana.
After saying he believed the ban is unconstitutional, DeSantis then immediately pivoted to attack Trump, saying he’s concerned about the former president “bargaining away Second Amendment rights.”
“This is an important election in terms of the nomination for the Second Amendment,” he said, “because Trump, I mean, he’s been willing to do a lot of things that infringe the Second Amendment in his career.”
DeSantis said earlier this month that if elected president, he would “respect the decisions that states make” on marijuana legalization despite his personal view that the reform has a “negative impact.”
Florida’s former agriculture commissioner, Nikki Fried, sued the federal government in 2022, calling the gun ban around marijuana use unconstitutional. Her office subsequently appealed a district court’s ruling against the lawsuit in November, but her successor, current Commissioner Wilton Simpson (R), has declined to continue participating in the case while additional plaintiffs pursue the appeal.
As more states have legalized marijuana, the Department of Justice has insisted on the necessity of the firearm ban in numerous federal courts, arguing at points that people who use marijuana and possess guns pose a unique danger, akin to permitting people with serious mental illness to own firearms. And so far courts have been divided on the issue.
In November, for example, DOJ told the U.S. Court of Appeals for the Third Circuit that historical precedent “comfortably” supports the restriction. Cannabis consumers with guns pose a threat to society, the Biden administration claimed, in part because they’re “unlikely” to store their weapon properly.
In a brief submitted in that case, attorneys for the Justice Department argued the firearm ban for marijuana consumers is further justified based on historical analogues to restrictions on the mentally ill and habitually drunk that were imposed during the time of the Second Amendment’s ratification in 1791.
The federal government has repeatedly claimed that those analogues provide clear support for limiting gun rights for cannabis users. But several federal courts have separately deemed the marijuana-related ban unconstitutional, leading DOJ to appeal in several ongoing cases.
The Justice Department asserted similar points during oral arguments in a separate but related case before the U.S. Court of Appeals for the Eleventh Circuit in October. That case focuses on the Second Amendment rights of medical cannabis patients in Florida.
Attorneys in both cases have also touched on a U.S. Court of Appeals for the Fifth Circuit ruling from August, Daniels v. United States, that found the ban preventing people who use marijuana from possessing firearms is unconstitutional, even if they consume cannabis for non-medical reasons.
DOJ had already advised the Eleventh Circuit court that it felt the ruling was “incorrectly decided,” and the department’s attorney reiterated that it’s the government’s belief that “there are some reasons to be uncertain about the foundations” of the appeals court decision.
The U.S. District Court for the Western District of Oklahoma also ruled last year that the ban prohibiting people who use marijuana from possessing firearms is unconstitutional, with the judge stating that the federal government’s justification for upholding the law is “concerning.”
In U.S. District Court for the Western District of Texas, a judge ruled in April that banning people who use marijuana from possessing firearms is unconstitutional—and it said the same legal principle also applies to the sale and transfer of guns.
In August, meanwhile, ATF sent a letter to Arkansas officials saying that the state’s recently enacted law permitting medical cannabis patients to obtain concealed carry gun licenses “creates an unacceptable risk,” and could jeopardize the state’s federally approved alternative firearm licensing policy.
Shortly after Minnesota’s governor signed a legalization bill into law last year, the agency issued a reminder emphasizing that people who use cannabis are barred from possessing and purchases guns and ammunition “until” federal prohibition ends.
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.
While people who use cannabis are barred from owning firearms under the statute, a little-notice FBI memo from 2019 that recently surfaced shows that the federal government generally does not consider it a violation of the law for medical cannabis caregivers and growers to have guns.
Republican congressional lawmakers have filed two bills in the first half of this current two-year session that focus on gun and marijuana policy.
Rep. Brian Mast (R-FL), co-chair of the Congressional Cannabis Caucus, filed legislation in May to protect the Second Amendment rights of people who use marijuana in legal states, allowing them to purchase and possess firearms that they’re currently prohibited from having under federal law.
Senate Majority Leader Chuck Schumer (D-NY) has committed to attaching that legislation to a bipartisan marijuana banking bill that advanced out of committee in September.
Mast is also cosponsoring a separate bill from Rep. Alex Mooney (R-WV) this session that would more narrowly allow medical cannabis patients to purchase and possess firearms.
Sen. Cory Booker (D-NJ) said in July that while he believes the justice system has effectively handled the prosecution against the president’s son, there’s still a double-standard in the country that has allowed presidents and members of Congress to admit to past marijuana use with impunity while subjecting thousands of less privileged people to punitive cannabis laws.
In Jersey City, New Jersey, meanwhile, city officials are suing the state in federal court in order to be able to screen and fire police officers for using marijuana. The suit is a response to the state attorney general’s revised drug testing policies for law enforcement agencies that prevented the testing of police officers for off-duty cannabis use in accordance with the state’s legalization law.
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