The DOJ Says Marijuana Use, Which Biden Thinks Should Not Be a Crime, Nullifies the Second Amendment

President Joe Biden thinks it is unfair that people convicted of simple marijuana possession face lingering consequences for doing something that he says should not be treated as a crime. Biden cited those burdens last October, when he announced a mass pardon of low-level federal marijuana offenders, which he said would help “thousands of people who were previously convicted of simple possession” and “who may be denied employment, housing, or educational opportunities as a result.” Yet the Biden administration, which recently began accepting applications for pardon certificates aimed at ameliorating those consequences after dragging its feet for five months, is actively defending another blatantly unjust disability associated with cannabis consumption: the loss of Second Amendment rights.

Under federal law, it is a felony, punishable by up to 15 years in prison, for an “unlawful user” of a “controlled substance” to possess firearms. The ban applies to all cannabis consumers, even if they live in one of the 37 states that have legalized medical or recreational use. That disability, a federal judge in Oklahoma ruled last month, is not “consistent with this Nation’s historical tradition of firearm regulation”—the constitutional test established by the Supreme Court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen. The Justice Department recently filed a notice indicating that it intends to appeal the decision against the gun ban for marijuana users.

The Biden administration’s defense of the ban relies on empirically and historically dubious assertions about the sort of people who deserve to exercise the constitutional right to keep and bear arms. Among other things, the Justice Department argues that “the people” covered by the Second Amendment do not include Americans who break the law, no matter how trivial the offense. It also argues that marijuana users are ipso facto untrustworthy and unvirtuous, which it says makes them ineligible for gun rights.

According to the Biden administration, the original understanding of the right to arms included exceptions broad enough to encompass people who consume any intoxicant that legislators might one day decide to prohibit. It says the law criminalizing gun possession by cannabis consumers is analogous to laws targeting “intoxicated” people who carry guns in public places.

Judge Allen Winsor, whom Donald Trump appointed to the U.S. District Court for the Northern District of Florida in 2019, accepted that last argument in November. Winsor dismissed a lawsuit in which Nikki Fried, a Democrat who was then Florida’s commissioner of agriculture and consumer affairs, argued that medical marijuana patients have a constitutional right to own guns. Winsor agreed with the Biden administration that they do not.

By way of historical precedent, Winsor noted colonial and state laws enacted in the 17th, 18th, and 19th centuries that prohibited people from either carrying or firing guns “while intoxicated.” The analogy was strained, since those laws, which applied only when people were under the influence, did not apply in private settings and did not categorically prohibit drinkers from owning guns. Although Fried’s Republican successor declined to appeal Winsor’s decision, the patients who joined the lawsuit are asking the U.S. Court of Appeals for the 11th Circuit to review their case.

Another Trump appointee, Judge Patrick Wyrick of the U.S. District Court for the Western District of Oklahoma, disagreed with Winsor in response to a challenge brought by a dispensary employee who was charged with violating the federal ban on gun pos