Back in April TTAG told readers about a lawsuit filed by Florida’s Agriculture Commissioner and then-candidate for Governor Nikki Fried. Here office issues concealed carry permits in the Sunshine State and the lawsuit challenges a federal prohibition on firearms possession for people lawfully using marijuana under state laws. Fried herself is a marijuana card holder.
Fried sued the the Department of Justice and the Bureau of Alcohol, Tobacco, Firearms on behalf of three Floridians who held Florida medical marijuana cards and were denied firearms purchases based on their answers to the 4473 form.
In the wake of NYSRPA v Bruen, which holds government gun control schemes to a much higher standard, the federal government now has a much steeper hill to climb in defending limits on Second Amendment rights. So when the ATF justifies the law making medical marijuana users prohibited persons, they now have the burden to prove that similar laws affecting gun rights not only existed, but were common and widespread practice around the time the Second Amendment was ratified.
In a post-Bruen world, we can expect governments responding to challenges to their gun control laws to dig and scrape to unearth whatever rights-denying precedents they can find. If anyone at any level of government has done anything remotely similar with gun laws in the past, those precedents will be cited in their responses, along with a big dose of hope that what they’ve found might be enough to impress a federal judge.
That’s exactly what we’re seeing in the government’s latest response to the Fried lawsuit (for which you can get from recap here).
In their desperate search for any sort of precedent to prop up limits on gun ownership for lawful users of drugs, the DOJ has decided that some very bigoted laws against Catholics, Native Americans, and even the homeless will do to justify today’s prohibition against marijuana users.
As the DOJ writes . . .
In England and in America from the colonial era through the 19th century, governments regularly disarmed a variety of groups deemed dangerous.
If there’s a more terrifying prospect than governments “deeming” certain groups as dangerous and deserving of disarmament, it’s hard to think what that might be.
The DOJ goes on to list these “dangerous” people, a list which includes Catholics, as if those who follow the Pope’s teachings are the equivalent of MS-13. They reference laws that disarmed Native Americans, with no justification for the supposed “danger” they posed. They also listed the mentally ill, panhandlers, and “persons refusing to swear an oath of allegiance to the state or the United States” as people that have historically been disarmed.
The obvious — even to a non-lawyer like me — counterargument here is that all of these laws were passed in a time prior to the passage of the 14th Amendment, which further limited governments’ legal ability to discriminate against people like these groups. So even if those policies were widespread, they wouldn’t be remotely unconstitutional today.
The Biden Administration lawyer who got the unenviable job of defending the government’s case here knew that counterargument was coming, so he pointed out that after the 14th amendment, it was still common practice to prohibit intoxicated people from possessing or using firearms. While that’s certainly true, the prohibition on carrying guns while drunk hardly justifies a blanket ban on ownership or possession by cannabis users even while they’re not high.
Never mind the inconsistency of the President’s stated position on marijuana use. As Reason’s Jacob Sullum pointed out . . .
…the Biden administration says, prohibiting medical marijuana users from owning guns is a perfectly rational policy that is consistent with the historical understanding of the right to keep and bear arms. Never mind that the president himself has said the current legal treatment of cannabis makes no sense, or that there is no 19th-century precedent for prohibiting people from owning guns based on the medicine they use.
While the government’s position is ludicrous, it’s still more than a little shocking that they’d cite past discrimination against religious and racial minorities as justification for maintaining the ban on gun ownership.
Not only does such an argument not really help their case, but the optics of looking like you’ve got something against “dangerous” Catholics and “untrustworthy” Indians — not to mention the homeless — doesn’t really play well in the current culture.
This is especially true coming from a compassionate Democrat administration which says it wants to save the nation’s soul and is part of a party that ostensibly opposes discrimination based on religion, race, or the status of someone’s housing (or lack thereof).
What Fried’s lawsuit has done is highlight the administration’s hypocrisy and put them in a difficult position in conflict with some of the Democrats’ supposed core tenets…civilian disarmament versus identitarian politics and group rights.
In the DOJ’s argument, the Biden administration has made it clear what’s more important to them. There’s literally no low to which they won’t go in defense of laws that further limit and eventually remove Americans’ gun rights…no matter how morally repulsive the foundation for their policies and laws may be.