Fried v. Garland

Fried v. Garland

Opinion

ORDER OF DISMISSAL

Federal law prohibits certain people from possessing firearms. 18 U.S.C. § 922(g). Among them are convicted felons, fugitives from justice, and—relevant here—anyone "who is an unlawful user of or addicted to any controlled substance." Id. As the parties agree, Florida's medical marijuana users are "unlawful user[s] of . . . [a] controlled substance," so this law makes it a crime for them to possess firearms. The primary issue in this case is whether the Second Amendment allows this result.

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," United States v. McIntosh, 833 F.3d 1163, 1179 n.5 (9th Cir. 2016), and federal law still prohibits possession of marijuana—for medical purposes or otherwise, see 21 U.S.C. §§ 841(a), 844(a); see also 21 U.S.C. § 812, Sch. I(c)(10), § 812(b)(1)(B). Indeed, federal law "designates [*3]  marijuana as contraband for any purpose" and "prohibit[s] entirely [its] possession." Gonzales v. Raich, 545 U.S. 1, 24, 27, 125 S. Ct. 2195, 162 L. Ed. 2d 1 (2005).¹

So while Florida (like many states) has decided it will no longer criminalize medical marijuana, the simple fact is that "[a]nyone in any state who possesses, distributes, or manufactures marijuana for medical or recreational purposes . . . is committing a federal crime." McIntosh, 833 F.3d at 1179 n.5.

As anyone driving by Florida's many marijuana dispensaries can see, though, federal law is not always enforced. In fact, through a series of appropriations riders frequently called the Rohrabacher-Farr Amendment—"Congress has prohibited the Department of Justice from 'spending funds to prevent states' implementation of their own medical marijuana laws.'" See Standing Akimbo, LLC v. United States, 141 S. Ct. 2236, 2237, 210 L. Ed. 2d 974 (2021) (Thomas, J., respecting the denial of certiorari) (quoting McIntosh, 833 F.3d at 1175-77)). So Congress has precluded the Department of Justice (for now) from prosecuting crimes that Congress (for now) chooses to maintain on the books. Cf. id. at 2236-37 (Thomas, J.) (explaining that "the Federal Government's current approach is a half-in, half-out regime that simultaneously tolerates and forbids local use of marijuana").

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