Up in Smoke

In our nation, if you have a legal doctor's prescription for medical marijuana for seizures, post-traumatic stress disorder, multiple sclerosis, Crohn's disease, pain, and other conditions, the federal government says that you cannot legally own a firearm. And if you dare to own a firearm and legally use medical marijuana, the government says that you belong in a cage for a period of up to 10 years. 

That is, if you legally use marijuana and own a firearm, you are committing a federal felony that carries 10 years in the federal slammer—THE BIG HOUSE!

Yes, this applies even in states where recreational use is legal, as well as states where medical marijuana is legal.

So, what will it be? Health care or gun rights?

With that, the title—Up in Smoke—references your gun rights.

And don't even think about lying on the form because that, too, will land you in the slammer for up to a decade.

Medical marijuana is now legal in 38 states, the District of Columbia, and four U.S. territories, and millions of people are enrolled in state programs to use it to help with a variety of conditions. 

Last year, the Supreme Court issued a landmark 6-3 decision in New York State Rifle & Pistol Association v. Bruen, striking down a longstanding public carry law in New York and casting doubt on gun control laws around the country. The case has far-reaching implications. But it's also caused mass confusion among the lower courts.

In the wake of Bruen, the U.S. Court of Appeals for the Fifth Circuit declared that preventing marijuana users from owning firearms is a no-go. Other courts, however, have held otherwise. Again—confusion.

The issue is shaping up to be one of the next legal frontiers in the national debate over gun policy, as courts around the country are asked to determine whether the longstanding federal restriction on marijuana use conflicts with Second Amendment gun rights.

With that, The Supreme Court in United States v. Rahimi has agreed to hear another case. 

We'll see how the saga plays out.

For now, whether you are committing a federal felony by legally smoking marijuana and owning a firearm depends on which part of the country you are in. I thought federal law was supposed to be consistent no matter the part of the country you live in?

One example of courts giving the ban a thumbs-down was in El Paso, when a resident named Paola Connelly, who admitted to using cannabis on occasion, suddenly found herself facing charges related to possessing and transferring a firearm. The U.S. District Court for the Western District of Texas, led by Judge Kathleen Cardone, granted a motion for reconsideration and dismissed the charges, delivering a huge victory for Connelly.

The court had initially convicted Connelly but changed its stance based on a recent ruling in the U.S. Court of Appeals for the Fifth Circuit, Daniels (2023),  citing U.S. Supreme Court precedent (Bruen 2022) that any restrictions on firearms must align with the historical context of the Second Amendment's ratification in 1791. Essentially, the courts are saying, "Hold up! Let's not forget what that ratification was all about - giving Americans the right to own and carry firearms for self-defense and protection against a tyrannical government." Overreach is real, kids!

The court took a jab at the Justice Department's defense, questioning their historical analogies and comparing the cannabis ban to laws against intoxicated gun use or possession by "unvirtuous" individuals. The court argued that since simple cannabis possession is just a misdemeanor under federal law, disarming someone for a bit of Mary Jane seems a tad much. 

In addition, the Justice Department seems to be conveniently avoiding reality, which is that to date, 24 states have already legalized recreational cannabis use, with another 11 states putting it up for vote in 2024. By the end of the year, we could be looking at more than half of the United States of America legalizing cannabis use. Is the Justice Department suggesting that the residents of half these United States, where it is perfectly legal to enjoy cannabis, are not allowed to own a gun to defend themselves, their families, and their property? Are they high?

Let's also not forget the very recent mass pardon by President Joe Biden for federal marijuana possession offenses. The court highlighted this, stating that even if Connelly should be busted for having a bit of the green stuff (It's still illegal in Texas), the presidential pardon would essentially wipe her slate clean.

This brings up the fact that Connelly was never convicted of a marijuana offense; she just happened to respond truthfully and state she uses the stuff to get a good night's sleep. 

Then there's Vera Cooper. Vera is an elderly, widowed woman in her mid-70s. After Vera fired an employee from her small business, the worker became irate and threatened to retaliate.

This made her feel incredibly vulnerable and anxious. Naturally, Vera wanted to feel safe and secure in her home. 

Her next step was to purchase a gun.

Or so she thought.

Since she is registered in Florida's medical marijuana program and relies on the drug to ease her chronic knee pain and sleeplessness, she was told that she was not allowed to purchase a gun.

Although Vera says that she would feel safer with a gun, she said that without marijuana before bed, she couldn't sleep. And so, the choice was made: health care over gun rights. Sad. 

With that in mind, there are 2.5 million burglaries annually in the United States, according to the United States Department of Justice yearly data, with over half of these being home invasions. 

Unfortunately, the elderly, fragile Vera will be unable to protect her home or herself. She lost that right when she was prescribed medicine. 

To be sure, I am not promoting the use of marijuana. I'm not a marijuana user, nor do I advocate for its use. I do think, however, that if someone chooses to put a substance in their own body legally, that is their business, and that should not prevent them from owning a firearm.  

It's a slippery slope. Where does it end? Stripping marijuana users of their voting rights? 

Moving on to the broader picture, the court challenged the government's position on selling or transferring firearms to cannabis users. It argued that the law's broad prohibition on such transactions infringes on Second Amendment rights almost as much as the ban on possession. 

The Connelly case is not the only one the Justice Department is juggling right now. There are at least four other federal cases that are questioning the government's marijuana and guns policy. If it weren't so blatantly awful, watching the Justice Department continually try to defend its overreach by finding historical analogies to justify its restrictions would be almost funny. All the while, states are impeding their plans. 

Recently, legislators in Arkansas clarified that medical marijuana patients can carry concealed weapons. In Maryland, a House committee is considering a bill to protect gun rights for medical cannabis patients. There is also the GOP congressman with the bill to allow medical cannabis patients to buy and own firearms. It's as if everyone is noticing what seems to be some sort of agenda by the Justice Department to get guns out of the hands of a lot of law-abiding citizens and saying, "Nope. We're not having it."

Republican congressman Rep. Brian Mast (R-FL), the co-chair of the Congressional Cannabis Caucus, reintroduced the Gun Rights and Marijuana (GRAM) Act on Thursday—one of the latest in a series of cannabis proposals to be filed in the run-up to the 4/20 holiday.

It would protect the Second Amendment rights of people who use marijuana in legal states, allowing them to purchase and possess firearms that they're currently prohibited from having under federal law.

"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," Mast said in a press release. "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."

The bottom line is the court has taken a stand, making it clear that the right to bear arms shouldn't go up in smoke just because someone legally uses marijuana for medicinal use or because someone legally enjoys a little weed. It's a legal dance-off, and the government might need new moves.

For now, if grandma has a firearm to protect herself, the federal government can toss grandma in the dungeon for many years just because she legally uses marijuana to help her with late-stage cancer complications. 

Perhaps worse still, if you're a war veteran who suffers from PTSD and other problems because you served this country, you, too, cannot own a firearm.  That is, if you fought for our freedom and you use medical marijuana, you are not free to own a firearm. According to some sources, 1 and 5 vets use medicinal marijuana.  Think about that. 

So whether you are a 90-year-old grandmother of 5 who sings in the church choir and has never had a speeding ticket and uses marijuana for medicinal purposes or you're a business professional/family man or mom or single who, in a state where recreational use is legal, chooses to unwind with a couple of puffs after a long day at the office instead of a glass of wine, you are not allowed to own a firearm to protect your family and home. 

Given the confusion stemming from Bruen, perhaps it's time for Congress to step in.

Stay tuned!