Florida’s 4/20 lawsuit – Florida’s agricultural commissioner filed a lawsuit on 4/20 asking the federal courts to find that the federal prohibition on gun ownership by medical marijuana cardholders violates the Second Amendment.

As in Florida, federal law prohibits the purchase or possession of firearms by marijuana users in SC, and, even if passed, the SC Compassionate Care Act will not change this.

Below, I’ll review the current state of SC law and federal law regarding why a marijuana user or medical marijuana cardholder is prohibited from purchasing a firearm, possessing a firearm, or obtaining a concealed weapon permit, including:

• Florida’s 4/20 lawsuit,
• SC gun laws related to marijuana use,
• Federal gun laws related to marijuana use, and
• The current status of the SC Compassionate Care Act.

Florida’s 4/20 Lawsuit

Florida’s agricultural commissioner – the state’s only statewide elected Democrat – filed a federal lawsuit on 4/20/22 asking the court to find that the Biden Administration’s federal prohibition on firearms for medical marijuana cardholders is unconstitutional:

The lawsuit targets a federal form that asks whether the gun buyer is an unlawful user of drugs and specifies that marijuana is illegal under federal law. A person allowed by the state to use marijuana must then check “yes,” which results in denial of the purchase. Lying by checking “no” runs the risk of a five-year prison sentence for making a false statement.

Fried, whose office oversees concealed weapons permits and regulates some aspects of medical marijuana, argues in her lawsuit that the form violates the Second Amendment rights of lawful medical marijuana patients and runs afoul of a congressional budget prohibition on federal agents’ interfering with state-sanctioned cannabis laws.

Although guns are legal in Florida and medical marijuana is legal in Florida, medical marijuana cardholders are denied their Second Amendment right to bear arms because, although small cases are rarely prosecuted federally and a majority of the country thinks it should be legal, marijuana is still illegal under federal law.

Unfortunately, as I’ve noted in prior articles, Florida has an uphill battle and the federal courts are not likely to agree with the agricultural commissioner’s lawsuit:

• The Ninth Circuit held in 2016 that a medical marijuana cardholder, although there was no other evidence that she used marijuana and she denied using the drug, can be denied the right to own a firearm because she is a medical marijuana cardholder, and
• The Fourth Circuit held in 2012 that a person can be convicted under 18 USC Section 922(g) for possessing a firearm if they are also a marijuana user, and there is no Second Amendment violation.

SC Gun Laws Prohibit Marijuana Users from Buying or Possessing Firearms

Because SC Code Section 16-23-30 makes it a crime for a “habitual drunk or drug addict” to possess or purchase a firearm, marijuana users are prohibited from possessing or purchasing firearms in our state.

Don’t think marijuana use makes you a “drug addict?” I don’t necessarily think so either, but don’t count on SC police, prosecutors, or judges to agree with you…

As the Florida 4/20 lawsuit highlights, even holding a medical marijuana card in a legal state does not protect you from prosecution, because marijuana is still illegal under federal law. If the SC legislature passes the Compassionate Care Act (which does not legalize marijuana, only the use of oils and tinctures for people with debilitating illnesses), it will:

1. Not protect you from prosecution for firearm possession, and
2. Provide the government with documentation that you are, in fact, a “habitual drunk or drug addict” who is prohibited from gun ownership.

Federal Gun Laws Prohibit Marijuana Users from Buying or Possessing Firearms

18 USC Section 922(g) makes it a federal crime to possess a gun if you are “an unlawful user of or addicted to any controlled substance.”

As the Ninth and Fourth Circuits have made clear, this includes marijuana even if you are a legal medical marijuana cardholder.

The US Congress has a bill pending that would legalize marijuana under federal law and remove it from the list of controlled substances. It has passed the House of Representatives, but it is not expected to pass in the Senate this year:

The Marijuana Opportunity Reinvestment and Expungement Act, sponsored by Democratic Representative Jerrold Nadler of New York, which is in the process of legalizing the drug, removes marijuana from the list of controlled substances and eliminates criminal penalties for individuals who grow, distribute or possess it.

But the MORE act will need to gain 60 votes in the evenly divided Senate before moving to President Joe Biden’s desk for his signature, an outcome widely seen as unlikely given the lack of Republican support for the measure.

What needs to happen before marijuana users in SC are guaranteed their Second Amendment right to bear arms?

• Congress needs to legalize marijuana, and
• SC needs to legalize marijuana, or
• The Florida 4/20 lawsuit, against all odds, needs to find a friendly ear in the federal courts.

Charleston, SC Marijuana Defense Lawyers

Grant B. Smaldone is a state and federal criminal defense attorney in Charleston, SC who focuses his practice on criminal defense cases including firearms violations, drug crimes, and marijuana possession.

Call now at (843) 808-2100 or use our contact form online to talk to a SC marijuana defense lawyer today.