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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.

Image via Twitter (@FDACS).

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.

Joe Biden
(AP Photo/Manuel Balce Ceneta)

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.

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  1. Won’t be long before the government starts citing slave codes for justifying restricting our movement, consumption of energy and property rights but, of course, nothing any lefty does could ever be racist. It’s not like they’re the pro-segregation party of the Klan that shot MLK or anything.

    • This is exactly what the DOJs brief reads like. It’s fairly short and the article above is a little kind to how nuts the brief is.

      • What I find most concerning is this from the DOJ :

        “In England and in America from the colonial era through the 19th century, governments regularly disarmed a variety of groups deemed dangerous.”

        From the colonial era, eh? How convenient, considering what the ‘Bruen’ decision just said justified what gun laws would be considered constitutionally-justified.

        Just declare them dangerous. Like what Biden just did a few days ago…

        • At first I found that idea absurd then I realized far worse has been done with a lot less justification.

    • covid lock downs? I couldn’t take my grand son to the beach. My wife couldn’t go to her church. But liqour stores and titty bars were still open.

      Slave codes are in the fascist lefts dna.

    • NY is attempting the same exact thing as it piles the sandbags and hopes to survive a deluge of 2A litigation. Appealing to colonial-era racism is a surprising (and stupid) strategy, but I appreciate the honesty: It’s nice to see leftists finally admit who they really are.

      • The “problem” is that Bruen’s requirement of looking to history and tradition leaves them with nothing else to look at, because back then that is all there was. What they are trying to do is to say, “Yeah, we know these were racist policies, but like, they go to show that such regulations were not deemed offensive to the Second Amendment at the time, and therefore history supports the (naked) proposition that regulation of who may have firearms is a historical tradition.

        • We won’t hold the SCotUS forever. When the Leftist Scum eventually ™ regain control, 2A rights will be struck down…

        • Hmm. Yet another of my comments removed from the site. I sure wish I knew what was going on.

          Methinks there might be something to that 2019 story of the behind-the-curtain admin dude at TTAG messing with people…

        • Yeah, I understand they don’t have much else to work with. It’s just hard to see how their reasoning will persuade ANY judge at all. Even left leaning judges, who will be looking for reasons to protect 2A infringements, are going to struggle with the notion that “gun control is fine just so long as it unfairly targets minorities, Papists, and the Irish.” Jeesh.

      • it still doesn’t work for NY. Catholics and Native Americans were objective traits. “Good moral character” is sunjective the “good cause” that Bruen struck down. If they removed “good moral character” and defined specific disqualifications, they might be able to make a case. They’d have to defend the historical precedent and not trample other rights, like denying an a$$hole for racist posts would violate the 1st Amendment.

    • “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.”

      Sure- probably easy to ban anyone of some sort of Japanese descent from owning firearms citing the “precedent” of the FDR internments during WW2.

  2. If anybody should be banned from owning firearms it should be drunks and drug users.

    Or am I supposed to think that you welcome both out on the streets?
    If that mean’s those that have license to use CANNABIS extracts then that’s the price they have to pay.
    There are many, many prescription drugs which the use of result’s in occupational restrictions including many anti-psychotics. Why should cannabis extractions be any different?

        • At least she had the dignity of a bygone age.

          I’m not a monarchist by any stretch of the imagination, but she was well respected internationally.

      • The Queen did something the fake limey didn’t, the fake intellectual from Ohio didn’t. She enlisted in the military of her Country (during wartime and could have stayed in the palace safely )and did what she could. The woman was a mechanic and is rumored to have gave advise well in her late years diagnosing vehicle issues.

        She was a class act, too bad those who follow her in the royal line don’t have have half the class she did.

        I don’t like the idea of Kings and Queens, but the woman was exceptional. I respect her for what she accomplished.

    • Have you ever taken a tylenol, and aspirin, or a decongestant, Idiot Al? You’re a drug user. Ever stop for a pint? Drug user. Drink coffee or tea? You’re just an addict. Has a doctor ever given you a prescription for anything?

      Stop talking smack when you have no idea what the subject is.

    • Albert, you really should consider how to pay your energy bill. If I were you I would be stacking firewood everywhere I could. They said on the news last night that the price is up187%. I guess you will be washing your ass in a cold water flat this winter. How bout that U K ?

    • All of our Human rights come from our Creator, not the government. The Constitution and Bill of Rights enumerates and recognizes the Rights we already have as humans and Englishmen. For a Right to be denied, it needs to be done by due process of law, first set out in the Magna Carta, not some random government requirement.

      Being a Drunk or a Drug user is bad, but we still recognize that these folks still have Rights like; Liberty, Life, Freedom of Speech, Freedom of Religion, the Vote, etc.

      Everyone is entitled to your opinion, but not to my God Given Rights.

  3. I’m Joe Biden and I’m a catholic.
    The Pope wishes I wasn’t but fck the Pope, he can eat sht and die, I’m the President of The United States of Algeria?, , ,,Argentina?, oh?, oh? come on man, it starts with an A and ends with an A , just give me a minute it’ll come back, the Guess Who wrote a song about it and a woman, hair smells nice, border Canada, and Texas, no Mexico, between Canada Mexico, woman, ahhhhhh yes , now I remember, American Woman, , I’m the president of The United States of America damn it.

  4. I don’t smoke pot, or do drugs, unless you call aspirin and Flomax drugs, I don’t drink alcohol either. Those of you that think the Fed or the State should have any say in this matter are thinking only in the short term and their own moralistic, holier than thou, better than everybody, selves. We must join together to eliminate these 2A restrictions. All restrictions. If you keep giving up your rights, and don’t say anything about others losing their rights, you lose those rights. It’s simple, think about it.

    • The first time an exception to a right or a law is made then before you know it we have a mess like out second amendment has become. Time to reset back to the original text, ” shall not be infringed “.

  5. I prefer not to be inebriated by substances. I prefer a clear mind. If you chose to drink or smoke pot, no problem. Just be responsible for your own decisions and not impede on others.

    • ^^^
      Agree wholeheartedly. Pothead in the section of the orchestra always wanted to take me on because I’m a known Conservative (rare in the professional musician field) and press his dope issues as some sort of moral statement. I’ve always let him know I don’t give a damn what he smokes, shoots or injects- just don’t also expect me or other taxpayers to pay for his treatment when his system’s SHTF, or if he kills someone driving or acting under its influence. Ditto for booze, or anything else.

      As per the 2A part of the issue: The same is true as far as I’m concerned. So long as you don’t harm me or others for no viable reason, carry on.

      Please don’t lump me in with the “Pure Libertarians” for thinking like this…

      • I am not a Libertarian in the current thought of that ideology, but I agree with you. People have free will, they can make their own choices. Being of free will, they are still responsible for their actions, and should suffer the consequences of those actions.

  6. Well, reefer isn’t as bad as booze, but not as benign as we first thought. Psychologically addictive, leads to obesity, and impotence. Its all natural and created by GOD. Everything you do should be in moderation. Don’t want to be wasted when JESUS returns. I leave it to GOD to judge about medical use, there are many plants that are medicinal.

    • I’m all for discriminating against our ostensibly catholic presidon’t…how the catholic church doesn’t excommunicate slow Joe & his ilk(like Pelosi) for being pro-baby butchery is beyond my understanding. Oh potheads too bad. Got a buddy who I’m fairly sure still gets high at 67. He’s got a ton of gats which I’m somewhat certain he bought privately. And gets his weed the same. Don’t tell anyone & get on a government list…

    • The current marijuana has a THC level 10 times what it was in the ’60s, and there are products that distill it to 90%+. Those high levels are being associated with high risks of psychosis. Oleander is also a naturally occurring plant, but I wouldn’t recommend consuming it unless you are in a hurry to talk to God in person.

  7. If you’re driving while intoxicated I want you arrested. Use your medical marijuana at home. And use Uber and Lyft to get around.

    The drug legalization fascists have never supported the Second Amendment. They have always support gun control. And they have turned medical marijuana into “a snake oil”. And promote the idea that it can solve everyone’s problems, whatever those problems are. Yes you should be able to get Firearms while you’re on medical marijuana treatments.

    But you’re just a bull sh!t artist if you’re going to tell me that marijuana intoxication, isn’t as debilitating as alcohol intoxication, when it comes to operating equipment or driving a vehicle.

    Candidate for Governor Nikki Fried is a fascist pothead.

    • Speaking of intoxication, what are you high on? Nobody is saying that being high on marijuana doesn’t impede judgement or adversely effect one’s ability to drive or operate machinery. What we ARE saying is that if you got drunk a week ago but are currently stone sober you should be able to walk into a gun store and walk out with a gun. Why is pot any different?

      • “What we ARE saying is that if you got drunk a week ago but are currently stone sober you should be able to walk into a gun store and walk out with a gun. ”

        That brings to mind the story about Winston Churchill being accosted by a fat elitist broad at a party…

      • I don’t know anyone in a leadership position in the drug legalization crowd, including commentators, who say you should not drive and smoke marijuana at the same time. They think the two go together.

        You might think otherwise. And if you do, you need to tell your friends in the drug legalization crowd. They should promote “safe usage” of these substances. And not down play Intoxicated driving using them.

        I must admit it will make them sound very silly/crazy to most people. But at least they will promote the idea that it’s wrong to be intoxicated while driving and smash into someone and kill them.

  8. i thought nikki fryed admitted to have a ccw and a medical marijuana card, even if she didn’t, i sure it’s just to win votes….and i agree with the comments of driving intox or high—the way people drive nowadays, without any idea of maintaining a car, let alone sharing the road, is scary……how many drivers know what to do at a traffic circle, check their oil, change a flat?

  9. It is acceptable to be a racist, and it’s ok to be an anti-Catholic bigot, in the Democrat Party. And the mainstream media will look the other way.


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