Voting Yes, To Be Told No: (Part 2 of Series)

<–– Previous article in series: “Medical Marijuana Disqualifies Florida Gun Owners”

By Harry Rutherford

With the recent legalization of medical marijuana, many Floridians may soon be forced to choose between medical marijuana and the ability to fully exercise their Second Amendment rights.

It is currently constitutional to consider medical marijuana cardholders unlawful drug users and prohibit them from purchasing firearms. The court in Wilson v. Lynch made that decision when it found both the law and ATF letter in question to be reasonably related to a substantial interest, and thus pass intermediate scrutiny.

To determine what level of scrutiny to apply, the Wilson court asked two questions.

  1. How close does the law come to the core of the Second Amendment right?
  2. How severe of a burden does the law place on the right?

It found that the appellant’s core Second Amendment right to use arms to defend her “hearth and home” had been burdened, but not severely. It therefore applied intermediate scrutiny to determine the constitutionality of the law and letter.

The Wilson court inherited this two-step framework from United States v. Chovan. The Chovan court examined several methods to determine the appropriate level of scrutiny. It made its decision based upon the belief that Second Amendment questions should be approached similarly to First Amendment challenges.

Whether First and Second Amendment challenges are analogous could be questioned, however. Firstly, the First Amendment guarantees more freedoms than the Second Amendment does. Therefore, a more broadly applicable framework of analysis may be necessary for the First Amendment.

Additionally, the Second Amendment guarantees a more absolute right than those under the First. The First Amendment affords different levels of protection depending on the type of expressive act in question (i.e. political expression has more protection than commercial speech, and fighting words, for example, have no protection at all).

For example, one’s ability to shout “fire” in a theater is burdened because such speech creates a clear and present danger.  This prohibition aims to prevent riots and injuries.

Second Amendment violations, on the other hand, often involve certain individuals or entire groups of individuals being completely prohibited from exercising the right. The Second Amendment right of felons and the mentally ill is not burdened, but completely stripped.

Regardless of whether intermediate scrutiny is the appropriate standard, the reasoning underlying the method the court used in deeming it to be appropriate is open to possible criticism. Under the guidelines the court used, however, intermediate scrutiny was the proper framework.

Having analyzed why the Wilson court chose to apply intermediate scrutiny, the next article in this series will examine how the court applied it.