The intersection between state law sanctifying medical marijuana and federal law outright banning it is a hot topic around the country. On Tuesday, the debate landed at the U.S. Supreme Court’s white marble steps.
An Oregonian County filed a petition for certiorari in the U.S. Supreme Court arguing that a federal law banning firearm possession for individuals who are “unlawful users” of or “addicted to any controlled substance” preempts state law allowing medical marijuana users to possess and carry firearms. 18 U.S.C. § 922(g)(3). The petition argues that the Court should grant review:
(1) to remove the obstacle created by the decision below to the objective of keeping firearms out of the hands of people whom Congress deemed potentially irresponsible and dangerous, (2) to address whether a state law is beyond the reach of the Supremacy Clause simply because it serves a purpose different from a seemingly conflicting federal law, and (3) to address whether the non-obstante provision in the Supremacy Clause precludes speculation about ways in which hypothetical actions of third-parties could potentially reconcile the conflicting state and federal laws.
After reading the petition, I immediately contacted Josh Blackman (of Fantasy SCOTUS fame) about his take on the petition. Josh writes extensively about the Second Amendment and firearm cases on his blog. Here is his take:
Ultimately this case is less about preemption, and more about whether the Supreme Court will let people presumed to be dangerous (drug users) possess firearms. Implicit in McDonald and Heller, and explicit in Ezell, is that the full panoply of Second Amendment rights applies to law-abiding citizens who pose no threat to others. Even though medicinal marijuana is legal under state law, it is still a crime under federal law–and DOJ still prosecutes distributors of medicinal marijuana. The question in this case cuts across a number of cultural issues–is a user of legalized marijuana a law-abiding citizen, or a dangerous criminal.
My guess is the Court won’t take this petition. It’s just too messy. It doesn’t do much to strengthen Second Amendment rights, as those seeking a concealed carry license are potentially dangerous. Additionally, ruling on preemption one way or another would impact the ability of the Federal Government to regulate medicinal marijuana in other contexts. As we saw in Gonzales v. Raich, the Court is loathe to get involved in that sphere.
I agree with much of what Josh said. But before I give any prediction on a grant or denial, I’d like to see what sort of amici support Oregon comes up with.
Medical marijuana, guns, and federalism: no matter what happens, this is an interesting issue and one that’s sure to arise as long as the feds continue to enforce the marijuana prohibition.
The case is Winters v. Willis.
Thanks to Josh Blackman for sharing his insights.