Voting yes, to be told no: medical marijuana disqualifies Florida Gun owners

This past election day, the Florida voters approved the Florida Medical Marijuana Legislation Initiative, also known as Amendment 2. The legalization of medical marijuana raises a variety of legal concerns Florida must now address.

At the forefront of these concerns is the possible infringement upon the rights guaranteed to U.S. citizens by the Second Amendment of the United States Constitution. This article is the first in a series, each of which shall examine a different aspect of this constitutional issue.

On September 21, 2011, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) issued an open letter to all entities licensed by the federal government to deal in the manufacture, importation, or sale of firearms. The letter stated that, even in states which have legalized medical marijuana, marijuana users should be treated the same as other drug users under 18 U.S. Code § 922.

Medical marijuana patients are thus considered to be unlawful users of or addicted to a controlled substance, and are prohibited by federal law from possessing firearms. The letter treats the possession of a medical marijuana card as sufficient evidence to reasonably conclude that the individual is an unlawful drug user.

The most prominent case dealing with the issue, Wilson v. Lynch, adopted the framework for analyzing Second Amendment claims from United States v. Chovan. The Chovan approach is a two-step inquiry, asking first whether the challenged law burdens conduct protected by the Second Amendment. If the conduct is protected, the court then determines what level of scrutiny is appropriate to evaluate the law. The Wilson court noted that, had the appellant been an unlawful drug user, her conduct would not have been protected. This premise regarding the constitutionality of prohibiting unlawful drug users from buying guns underlies much of the opinion. Since the appellant claimed she never used marijuana and only acquired the card to make a statement, the court found her conduct to be protected.

The next two additions in this series shall analyze how the court determined the appropriateness of intermediate scrutiny and its application. The final installment will examine the premise regarding the constitutionality of prohibiting unlawful drug users from buying guns. However, there are concerns regarding the general use of intermediate scrutiny for rights guaranteed in the Bill of Rights.

Levels of scrutiny are essentially just tools that allow the court to balance the interests of the government against the rights of the individual. The more important the right in question, the more the scales are tilted towards the individual from the outset. The rights guaranteed in the Bill of Rights, therefore, often trigger strict scrutiny. Evaluating a right guaranteed in the Bill of Rights at a lower level of scrutiny could be somewhat troubling.

The Second Amendment right of medical marijuana patients is an issue Florida will soon face. Although Wilson was a federal case from another district and thus isn’t binding, it may still hold persuasive value. Understanding the decision and the court’s reasoning can guide Florida moving forward. Accordingly, the next articles in this series will analyze the reasoning of the Wilson court in further depth.

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