Cannabis and the Second Amendment

What about cannabis and the Second Amendment? With more places in the US legalizing recreational cannabis, the question of Second Amendment rights is as relevant as ever.

We’ve covered that Joe Biden’s “mass pardon” of low-level cannabis offenders was more style than substance.

Actions speak louder than words, and Biden’s administration is defending the federal ban on gun possession by cannabis consumers.

Gun possession is limited to “law-abiding citizens,” according to Biden. Which, even in the legal states, does not include cannabis users. Whether medical or recreational.

Cannabis and the Second Amendment

When it comes to cannabis and the Second Amendment, the US still has a long way to go.

Despite the Supreme Court repeatedly upholding the constitutional right to armed self-defence, state and federal legislators always try to find loopholes to disarm the public.

Last week, a federal judge dismissed a challenge by Florida Agriculture Commissioner Nikki Fried and other plaintiffs. Fried argued that prohibiting medical cannabis patients from buying and possessing guns violated their second amendment rights.

For cannabis consumers owning guns, the penalties are severe. They can include up to 15 years in prison for possession, 15 years for attempting to buy a gun, and ten years for failing to report cannabis consumption on the form required for gun purchases.

Nikki Fried is a Democrat, but she has the support of Republican Florida Governor Ron DeSantis.

“The governor stands for protecting Floridians’ constitutional rights—including 2nd Amendment rights,” says a statement from his office. “Floridians should not be deprived of a constitutional right for using a medication lawfully.”

However, in his ruling last Friday, U.S. District Judge Allen Winsor upheld the Biden administration’s prohibition on cannabis consumers owning guns.

He said it was “consistent with this Nation’s historical tradition of firearm regulation.”

Winsor has a history of banning gun ownership by people convicted of certain crimes. But, as many have pointed out, medical cannabis isn’t a crime in Florida.

Supreme Court Justice Amy Coney Barrett has said: “Legislatures have the power to prohibit dangerous people from possessing guns. But that power extends only to people who are dangerous.”

Are Cannabis Consumers More Dangerous Than Alcoholics? 

No one in their reasonable mind would call cannabis consumers dangerous.

Even alcohol, with its far-reaching negative impacts, isn’t dangerous when the consumer is responsible and not drinking excessively.

Why isn’t the same logic extended to cannabis consumers? On the federal form to purchase guns, why not ask how many alcoholic drinks one has per week?

Nevertheless, Judge Winsor suggested that cannabis consumers are dangerous. He and the Biden Administration have cited laws enacted from the 18th and 19th centuries that prohibited people from carrying guns “while intoxicated.”

Of course, those laws only apply to gun owners under the influence of alcohol. Not a general blanket ban on all drinkers.

Furthermore, it is illogical to restrict Second Amendment rights regarding cannabis. When the US founders ratified the Second Amendment, cannabis and hemp weren’t illegal.

We’ve all seen the old medicine bottles from the 19th century that include in its list of ingredients, cannabis, opium, alcohol, etc.

It’s hard to imagine Americans from the 19th century would support restricting Second Amendment rights based on cannabis. A harmless, nontoxic, and medicinal herb.

Cannabis and the Second Amendment: The Supremacy Clause 

When upholding the laws surrounding cannabis and the Second Amendment, Judge Winsor cited the Supremacy Clause in the US Constitution.

Winsor wrote in his ruling:

“In 2016, Florida stopped criminalizing the medical use of marijuana. Many people refer to this change as Florida’s ‘legalizing’ medical marijuana, but Florida did no such thing. It couldn’t. ‘Under the Supremacy Clause of the Constitution, state laws cannot permit what federal law prohibits,’ and federal law still prohibits possession of marijuana — for medical purposes or otherwise,”

So what is the Supremacy Clause? It’s the part of the US Constitution that makes it clear the federal government is supreme.

But what does this mean? It depends on how you ask.

For many working in the spirit of classical liberalism, it means the federal government is only supreme within its sphere of power.

A fit analogy would be a referee in a football game. The referee has supreme authority over the game. But he can’t get in there and start playing. That oversteps his authority.

The Supremacy Clause declares that the US Constitution “in pursuance thereof” is the country’s supreme law. Any laws or regulations not “in pursuance thereof” fall outside the federal government’s sphere of power.

The laws of the federal government are not supreme just because. US founder Alexander Hamilton called laws like this “void.”

The US Constitution limits what the federal government’s powers are. 

Yet despite this, those working outside the classical liberal tradition throw out all historical context and nuance and interpret the Supremacy Clause as “federal laws supersede state laws.”

Cannabis and the Second Amendment

Nowhere in the US Constitution does the federal government have the right to prohibit cannabis. 

And they certainly operate outside the rule of law when they ban cannabis consumers from exercising their Second Amendment rights.

But as the Declaration of Independence says,

“Governments are instituted among men, deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it.”

Or, put another way, “The beauty of the Second Amendment is that it will not be needed until they try to take it.”