When Rights Clash: Guns v. Pot Edition

As should be readily apparent, rights clash all the time.  My right to free speech comes at the expense of someone else’s right to be left alone.  Your right to safety comes at the expense of my right to liberty.  Balancing rights is usually unsatisfying, as they then fail to serve any purpose very well.  For those who think this should all be simple and easy, these clashes offer some indication of how difficult it can be.

Bobbi Jo Floyd of Richland, Washington, got smacked in the face by a clash of rights, but both were hers and neither were inherently in conflict.  Via KOMO News:

The Second Amendment gives every law abiding American the right to bear firearms, but the two don’t coexist very well when it comes to marijuana. The conflict between federal and state law is putting police and gun-owning marijuana users in the middle.

It’s a conflict Bobbi Jo Floyd of Richland knows all too well.

Floyd is also an outspoken proponent of medical marijuana and an authorized patient.

“I’m also a Republican and I believe in my guns,” she said.

Floyd sought her concealed carry permit, and the application included a box that asked “Are you an unlawful user of, or addicted to, marijuana?”  She answered truthfully, no.

“An employee recognized me and she asked me to attach my medical license on my application,” she said.

With nothing to hide, Floyd says she obliged.  A couple of weeks later, she got her application back in the mail. It was denied.

While she was not an unlawful marijuana user under Washington State law, she was, by definition, under federal law, since there is no such thing as a lawful user.

With the denial came a letter for Richland Police Chief Chris Skinner who wrote Floyd was not eligible to receive a CPL because she had an authorization to possess cannabis. Skinner also cited Federal law, 18 U.S.C. 922(g)(3) which prohibits any son [sic] who is an “unlawful user of, or addicted to any controlled substance” from shipping, transporting, receiving or possessing firearms or ammunition.

Skinner goes on to write that marijuana is listed in the Controlled Substances Act as a Schedule I controlled substance and “there are no exceptions in Federal law for marijuana purportedly used for medicinal purposes, even if such use is sanctioned by State law.”

As a by-product of the remaining conflict between marijuana remaining a Schedule I drug despite the Washington State law permitting the use of marijuana, combined with the overlap in federal and state regulation of guns, Floyd was screwed.

The article points out that this isn’t the first instance where a law-abiding person who uses marijuana was denied a permit.

A precedent may already have been set.  In 2012, the US Supreme Court declined to hear an appeal from an Oregon sheriff who denied a conceal weapons licensee to a medical marijuana user.  Cynthia Willis of Central Point Oregon was denied a CWL the the Jackson County Sheriff because she uses medical marijuana.

She sued and won at ever court level including the Court of Appeals and the Oregon Supreme Court. The sheriff argued federal law prevents a person from possessing a firearm, even if medical marijuana is legal under state law, which it is in Oregon.

While this obviously isn’t a precedent, the curious thing is that Willis, despite having prevailed, refuses to say whether she owns a gun for fear that the feds will come after her.  She wisely recognizes that the victory may have gotten her a permit from the state, but doesn’t prevent the feds from seeing things their way.

Where the clash of rights here becomes inanely muddled is in dual sovereignty, commerce clause creep and the incongruence of the Second Amendment being a fundamental right, yet treated as if it’s a privilege.  While the Supreme Court in Heller may have announced that we have a constitutional right to possess firearms, that awkward, inexplicable and doctrinally empty orphan paragraph in Scalia’s opinion that allowed gun ownership to remain subject to regulation without justification continues to haunt the right to bear arms.

So people like Bobbi Jo Floyd are forced to forfeit a fundamental constitutional right in order to avail themselves of a right permitted under state law?  They’ve created a Catch-22 for law-abiding citizens.

Lest some shrug their shoulders at this dilemma, because they don’t share any particular concern about the loss of Second Amendment rights because guns are evil and kill, consider that there are people around who feel similarly about the First, Fourth, Fifth, Sixth and Eighth Amendments.  You know, the ones you like.

Here’s the deal: we either honor the Bill of Rights or we don’t. We do not get to pick and choose which ones we like, and ignore the rest.  If you want the Second Amendment repealed, go for it. Until then, respect it. That’s how the Constitution works.

And if conflicts like Floyd’s, manufactured not by some inherent demon that precludes the exercise of multiple rights without a clash, but because one arm of government decides to ignore another arm of government, or because a fundamental right isn’t nearly as fundamental as it’s supposed to be, then consider the mischief available for conflicting laws that impair constitutional rights in other aspects of our lives.

Would you be happy to learn that federal magistrates are required to sign off on warrants where probable cause is demonstrated, but the execution of which will necessarily impair the constitutional rights of tens of thousands of other people?  It’s already happening, just in case you weren’t aware.

There are a host of solutions to Floyd’s dilemma, all of which require one of two things: Either fundamental constitutional rights must be held to be fundamental, or statutory prohibitions that conflict with those rights need to be held unconstitutional as applied.  In the specific instance, there will be a day when marijuana is removed from Schedule I, which has long been acknowledged by pretty much anyone with half a brain as an absurdity, and this problem disappears.

But new conflicts will invariably erupt, and they may affect the constitutional rights you love so dearly.  It’s one thing when the clash occurs organically. It’s unfortunate, but can’t be prevented. It’s another when the clash is born solely of the government’s choice of making life miserable for people and impairing their constitutional rights whenever possible.  It can’t work that way if we’re to have constitutional rights and the privileges and immunities conferred by our State.

9 thoughts on “When Rights Clash: Guns v. Pot Edition

  1. Turk

    I don’t see the conflict. Is she part of a well-regulated militia? If not, the gun ownership is a privilege. (If she is, then I see a conflict with the Feds discussing how the state wishes to regulate, unless interstate commerce is concerned in which case the Feds can step in.)

    1. noah

      I think that whole prefatory clause argument went the other way a few years ago. In many places we don’t know whether there is a self-defense right to carry outside the home, but we do in the Ninth Circuit – which decided there was in Peruta v. County of San Diego.

      I think we can whine about how the Supreme Court defines our rights (I know I do regularly with Fourth Amendment cases), and I certainly don’t want those open-carry nuts at my kids’ playground. There may be a reason that medical marijuana users shouldn’t carry so that a regulation could prohibit it, if for example, there’s evidence that the pain that requires marijuana use and/or the use of marijuana makes a person unsafe to carry a gun (I’m not saying there is, but there could be). It seems like reasonable people disagree about how fundamental this right is or should be, and maybe that’s a good reason to allow regulation of the right, but the regulation should have greater reasons at this point than we want to discourage gun possession.

      1. SHG Post author

        Sure. And if marijuana users are undeserving of Second Amendment rights, they surely can’t be afforded Fifth Amendment Rights. There certainly could be no rationale that could be used to justify those reefer-nuts being allowed to conceal their dangerousness toward others. Oh, wait.

        Think through how that game plays out. We either defend all rights or none.

  2. ExCop-LawStudent

    The simple solution is to legalize marijuana, like Nixon’s drug commission recommended back in the 1970s, at the beginning of the “War on Drugs.”

    Maybe that could be a catalyst to looking at a new approach to drugs, since what we have done for 40 years has not worked.

    I doubt that it will happen, as most of the people supporting Second Amendment rights will be the ones screaming in opposition to changing idiotic drug laws.

  3. Steven Warshawsky

    Excellent post, as always. I write to specifically applaud your blunt comment regarding “the government’s choice of making life miserable for people and impairing their constitutional rights whenever possible.” Although the government performs certain necessary functions, of course, far too many people fail to recognize how tyrannical our own government can be.

    1. SHG Post author

      If you speak with someone in an official government position, you learn that they believe in the necessity of what they do because it’s for our own good. This is a recurring theme, that the mantle of authority reinforces the belief that their sensibilities are paramount, that others don’t get it or don’t appreciate that those in positions of power have some superior grasp of right and wrong, and so can be discounted and ignored.

      This is why so many former public officials only have their epiphany afterward about why their steadfast beliefs while in office were so ridiculously wrong. While in power, they harbor an absolute belief that they are right to make people miserable, and anyone who disagrees just doesn’t understand.

  4. Pingback: 2nd Amendment Clashes With MMJ Laws |

  5. Frank

    I’m a little confused here. Last time I checked, the state was supposed to gain its powers from the people, not the other way around. How then can the state claim to grant or deny rights?

    1. SHG Post author

      This is the depth of thought one usually finds on a really contentious reddit thread. Not here.

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