Headline: DOJ says federal appeals court wrong to rule gun ban for marijuana users unconstitutional

A federal appeals court ruled that a firearms ban for marijuana users is unconstitutional. But the U.S. Department of Justice says they're wrong.

According to an Aug. 14 story by Schedule 6 Foundation — in a segment called "Marijuana Moment" — the DOJ filed a one-page brief Aug. 11 with the U.S. Court of Appeals for the Eleventh Circuit, saying the U.S. Court of Appeals for the Fifth Circuit was wrong when it recently deemed the law barring cannabis consumers from buying or possessing firearms to be unconstitutional.

The "Marijuana Moment" story reads, in part:

The DOJ contests the decision in that case, which is also relevant to a lawsuit that the Eleventh Circuit is considering. That suit, originally filed by former Florida Agriculture Commissioner Nikki Fried (D), more narrowly concerns the rights of state-registered medical cannabis patients to own guns, but the basic structure of the case is the same.

Issue of firearms and marijuana use is not new

Buckeye Firearms Association pointed out the issue with marijuana use and firearms back in 2017 after the Ohio General Assembly in 2016 legalized medical marijuana.

From that story:

House Bill 523, passed Sept. 8, 2016, legalized medical marijuana in Ohio. … The question is, how does this affect gun rights in Ohio? The answer seems to be, if you use marijuana, you lose your gun rights regardless of state law.

Here's the problem: While the state has made medical marijuana legal in Ohio, federal law continues to list marijuana as a Schedule I controlled substance. That means marijuana users can't even possess guns legally.

Our 2017 article pointed to a 2011 letter from the Bureau of Alcohol, Tobacco, Firearms and Explosives to all federal firearms licensees that reads, in part:

As you know, Federal law, 18 U.S.C. § 922(g)(3), prohibits any person who is an "unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)" from shipping, transporting, receiving or possessing firearms or ammunition. Marijuana is listed in the Controlled Substances Act as a Schedule I controlled substance, and there are no exceptions in Federal law for marijuana purportedly used for medicinal purposes, even if such use is sanctioned by State law. Further, Federal law, 18 U.S.C. § 922(d)(3), makes it unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person is an unlawful user of or addicted to a controlled substance. As provided by 27 C.F.R. § 478.11, "an inference of current use may be drawn from evidence of a recent use or possession of a controlled substance or a pattern of use or possession that reasonably covers the present time."

Therefore, any person who uses or is addicted to marijuana, regardless of whether his or her State has passed legislation authorizing marijuana use for medicinal purposes, is an unlawful user of or addicted to a controlled substance, and is prohibited by Federal law from possessing firearms or ammunition. Such persons should answer "yes" to question 11.e. on ATF Form 4473 (August 2008), Firearms Transaction Record, and you may not transfer firearms or ammunition to them.

For now, the Fifth Circuit decision renders the ban unlawful in Louisiana, Mississippi, and Texas, according to the "Marijuana Moment" article. The Eleventh Circuit, meanwhile, has jurisdiction over Alabama, Florida, and Georgia. If that latter court ultimately upholds the constitutionality of the ban, that would set the stage for the Supreme Court of the United States to intervene amid conflicting circuit holdings.

Stay tuned.

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