Marijuana Lovers Take Note: You Forfeit Your Second Amendment Rights If You Fire Up — Even in Legal States

Second Amendment

Days after Minnesota became the 23rd state in America to legalize recreational use of marijuana last month, the federal Bureau of Alcohol, Tobacco and Firearms sent out a friendly reminder to residents there: when you take advantage of your newfound right to smoke weed, you are giving up your Second Amendment rights.

The federal Gun Control Act of 1968, the agency said in a statement, prohibits any user of a controlled substance in America from shipping, transporting, receiving or possessing firearms or ammunition of any kind. Marijuana, at the federal level, is still considered a controlled substance, the statement said, and the rule applies to both medical and recreational users of the drug.

“Until marijuana is legalized federally, firearms owners and possessors should be mindful that it remains federally illegal to mix marijuana with firearms and ammunition,” said the acting Special Agent in Charge of the agency’s St. Paul office, Jeff Reed. “As regulators of the firearms industry and enforcers of firearms laws, we felt it was important to remind Minnesotans of this distinction as the marijuana laws adjust here in the State of Minnesota.”

The notice was another stark reminder of just how much of a tangle marijuana laws are in America at the moment. Retailers in some states can sell the drug, but they can’t accept credit cards or open bank accounts with their proceeds. Farmers can grow the crop in some states, but they can’t sell to buyers across state lines without running afoul of interstate commerce rules. Tax deductions for overhead, wages, advertising and other expenses that most businesses are allowed to take on federal returns are not allowed for companies in the marijuana business. 

President Biden has argued that simple possession of marijuana should not be considered a crime, going so far last year as to announce a mass pardon of thousands of low-level marijuana offenders. He said it was unfair that these people “may be denied employment, housing, or educational opportunities as a result” of those convictions. At the same time, however, his Justice Department has argued in court that “the people” guaranteed Second Amendment rights do not include those who break the law.

So far, the courts have offered no clarity on the issue. One federal court in Oklahoma declared the ban unconstitutional in February, dismissing an indictment against a man charged with violating the prohibition. Judge Patrick Wyrick said in his ruling that the defendant’s status as a marijuana user does not justify “stripping him of his fundamental right to possess a firearm.”

Marijuana use, the judge continued, is “not in and of itself a violent, forceful, or threatening act” and “the mere use of marijuana carries none of the characteristics that the Nation’s history and tradition of firearms regulation supports.” The Justice Department has appealed Judge Wyrick’s ruling.

A second ruling from a federal court in Florida, however, decided the exact opposite. A judge in that case dismissed a lawsuit from plaintiffs claiming that their Second Amendment rights were being violated because they used, or wanted to use, marijuana for medical purposes. The judge took the Justice Department’s side when it argued that, regardless of state law, people who use marijuana are breaking federal law and therefore should be denied the right to possess firearms.

Second Amendment advocates such as the National Rifle Association have taken the side of marijuana users in the debate. “It would be unjust for the federal government to punish or deprive a person of a constitutional right for using a substance their state government has, as a matter of public policy, legalized,” a spokeswoman for the organization, Amy Hunter, tells the Sun.

Some in Congress also are trying to clear up the confusion. A Republican from Florida, Brian Mast, introduced a bill in the House in April that would change the existing law. His Gun Rights and Marijuana Act — which has yet to advance out of the House Judiciary Committee — would end the current prohibition on gun sales to marijuana users. The issue, Mr. Mast says, is of particular importance to veterans, many of whom use marijuana as a treatment for post-traumatic stress disorders.

“No one should be forced to choose between their rights: you have a right to bear arms, and in many states, you have a right to use cannabis,” he said. “Congress needs to legislate based on reality, and the reality is that those who legally use marijuana are being treated as second-class citizens.  That’s not acceptable.  Government exists to protect the rights of the people, and that’s what this bill does.”

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