Marijuana users sue for gun rights

Sean Kiernan joined the airborne infantry straight out of high school in 1989. He left the military after almost four years, earned a college degree, and went to work for a hedge fund. But years later, one incident came back to haunt him—his good friend was shot 24 times and killed on a mission. “The survivor’s guilt crept in,” he recalled. “The anxiety and the manic, the waking up at night in sweats and being angry and punching holes in the wall.”

Kiernan’s doctor prescribed him Lamictal for bipolar disorder and a host of antidepressants. But the drugs only exacerbated his dark thoughts, and he spiraled into addiction, eventually attempting suicide. That all changed when Kiernan heard about using cannabis to treat post-traumatic stress disorder. Now, with authorization from a physician, he uses the drug exclusively, inhaling the vapor from a highly-concentrated wax through a glass tube.

As CEO of the Weed for Warriors Project, Kiernan helps veterans access medical marijuana—and also exercise their right to keep and bear arms. Federal law prohibits cannabis users from owning a gun. Individuals purchasing a firearm must indicate on a federal form whether they are unlawfully using any drug classified as a controlled substance. Kiernan said the requirement doesn’t work. “It makes a mockery of the system because the veterans simply lie” or turn to the black market, he said.

In states where recreational and medical use of marijuana is legal, supporters are asking courts to consider whether federal restrictions prohibiting the purchase of firearms are in conflict with Second Amendment rights. Proponents of keeping the ban in place argue it is an essential safeguard against the higher concentration of THC in today’s marijuana, which is associated with paranoia and psychosis.

Marijuana is legal for medical purposes in 38 states. At least 3.5 million Americans are enrolled in state medical programs, though the number of individuals who use the drug medically is much higher since not all states require users to register. Ohio became the 24th state to legalize the drug for recreational use in November 2023.

Federal law still classifies marijuana as a Schedule I substance, with no currently accepted use in medical treatment. The Food and Drug Administration has not approved a marketing application for cannabis for the clinical treatment of any disease or condition. That means all cannabis users are prohibited from purchasing firearms under federal law. Lying on the federal form that asks about drug use is a felony.

Deja Taylor, the Virginia mother of a then 6-year-old student who shot his teacher in January 2023, was sentenced to 21 months in prison for using marijuana while owning a firearm. Authorities indicted Hunter Biden under the same law for lying about his crack cocaine use when he purchased a gun.

Soon after Minnesota legalized marijuana in 2023, the Bureau of Alcohol, Tobacco, Firearms, and Explosives warned Minnesotans that federal law still forbids active cannabis consumers from purchasing guns.

“They’re basically saying, well, you can have the effect of medical treatment or you can have your rights under the Second Amendment,” said Howard S. Wolfe, a former ATF supervisor who consults on federal firearm policy for Prince Law Offices in Pennsylvania. Last month, two of the firm’s attorneys filed a lawsuit against the federal government on behalf of several Second Amendment advocacy groups and Warren County District Attorney Robert Greene, who is registered as a medical marijuana patient in Pennsylvania.

Several other lawsuits are winding their way through federal court. At the center of the debate is a Supreme Court ruling in 2022 that established a new legal framework for lower courts evaluating the constitutionality of gun control laws, Wolfe said. In New York State Rifle & Pistol Association, Inc. v. Bruen, the 6-3 majority declared the government must justify any restriction by demonstrating it is consistent with the nation’s historical tradition of firearm regulations.

The federal government barred marijuana users from owning guns when it passed the Gun Control Act of 1968 after a slew of high-profile assassinations. “It doesn’t go back that far,” Wolfe pointed out.

The 5th U.S. Circuit Court of Appeals is the nation’s highest court to rule against the ban. In August 2023, justices found the federal ban violated a Mississippi man’s Second Amendment right to keep and bear arms. Law enforcement convicted him under the law when they found a pistol and marijuana cigarette butts in his car during a traffic stop. He was sentenced to almost four years in prison. The Department of Justice appealed the ruling and the U.S. Supreme Court is considering whether to take up the case.

Two months after the 5th Circuit’s ruling, the 11th U.S. Circuit Court of Appeals considered a similar case filed by medical marijuana users in Florida along with then–Florida Agriculture Commissioner Nikki Fried. Justice Department attorney Steven Hazel argued the federal ban parallels historical laws barring mentally ill people and alcoholics from possessing guns.

But Circuit Judge Robert Luck countered the argument, pointing out that those laws were intended for individuals who were “intoxicated at that moment and didn’t extend past the moment of intoxication.” Still, marijuana is classified as a Schedule I drug, Circuit Judge Elizabeth Branch noted, highlighting its association with paranoia and psychotic symptoms. The 11th Circuit has not yet handed down a ruling.

Luke Niforatos is the executive vice president of Smart Approaches to Marijuana, a group that opposes marijuana legalization and commercialization. He characterized the movement to challenge the federal ban as another effort by the cannabis industry to normalize marijuana’s use. But today’s high-potency marijuana shouldn’t be normalized, he argued: “That means more addiction. That means more people dying on the roads, it means more of our kids using these drugs.” Users typically consume a substance with a THC content of 18 percent to 23 percent, though THC concentrates found in gummies and edibles can reach as high as 95 percent potency.

Niforatos argued that federal restrictions barring users from accessing guns are essential safeguards. He pointed to a growing body of studies associating regular consumption of highly concentrated THC with substance use, mental health disorders, antisocial behavior, and even violence.

A 2020 review of research in The Canadian Journal of Psychiatry associated cannabis use with increased odds of developing anxiety conditions. Daily users of products with a THC potency of 10 percent or more were five times more likely to develop a severe mental illness like schizophrenia or psychosis, according to a 2019 study in The Lancet Psychiatry. Cannabis exacerbated the anxiety and mood disorders symptoms of participants in a 2018 review of research published in The Journal of Clinical Psychiatry.

Still, Kiernan with Weed for Warriors argued that association is not the same as causation. He acknowledged there are risks to consuming high-potency marijuana like the cannabis wax he vaporizes and inhales, a concentrate he said contains 84 percent THC. “There are people who shouldn’t use cannabis,” he said. “But how do we police that? Do we deny everyone freedom?”

The fight to allow cannabis users access to guns has created some unlikely allies, Kiernan noted, since liberal advocacy groups are often only passionate about cannabis access until it intersects with Second Amendment rights. That leaves veterans caught “in the void,” he said.

Last April, Republican Rep. Brian Mast of Florida reintroduced the Gun Rights and Marijuana Act, making the first marijuana bill of the new Congress a Republican-led measure. The bill would amend the federal statute to clarify that cannabis consumers in states where the drug is legal are not unlawful drug users.

Don Spencer, president of the Oklahoma Second Amendment Association, argued that it is federal overreach to curtail an individual’s Second Amendment rights for seeking medical treatment legal under state law. Oklahoma created a state medical marijuana program in 2018.

“If it messes with you and your judgment, either you carry the gun or you carry the prescription, but you don’t do both,” said Spencer. “That’s what a responsible citizen does.” But that doesn’t mean the government should completely strip them of their right to keep and bear arms for possessing a medical marijuana card, he added.

“We tell people that if you’re going to have a medical marijuana card, you’re not going to be able to acquire a handgun license,” Spencer said. “We tell them you need to buy all the guns you’re going to buy if you’re going to have a marijuana card.”