Two Wrongs And One Right

Weed? Many believe it’s just not a bad thing in general, but most believe that it has significant medicinal uses. Whether you believe legalizing recreational use of marijuana is a good idea, few would argue that it shouldn’t be available for medical users, despite Schedule I and Jeff Sessions’ ability to recite the entire script of Reefer Madness.

But should medical users be denied the right to vote? Oh wait, wrong right.

Hawaii is one of 29 states that allow medical use of marijuana, but it is the only state that requires registration of all firearms. If you are familiar with the criteria that bar people from owning guns under federal law, you can probably surmise what the conjunction of these two facts means for patients who use cannabis as a medicine, which Hawaii allows them to do only if they register with the state. Some of them recently received a letter from Honolulu Police Chief Susan Ballard, instructing them to turn in their guns.

“Your medical marijuana use disqualifies you from ownership of firearms and ammunition,” Ballard says . . ..

There’s a disconnect here, of course. For those unable to separate the things they like from the things they hate, this is an easy issue. Weed is good. Guns are bad. Problem solved.

For those who recognize that the Second Amendment to the Constitution has been held to protect a fundamental individual right, even if (like me) they’re not gun owners or aficionados, the problem isn’t so simple.

As authority for disarming medical marijuana users, Ballard cites Section 134-7(a) of Hawaii’s Revised Statutes, which says “no person who is a fugitive from justice or is a person prohibited from possessing firearms or ammunition under federal law shall own, possess, or control any firearm or ammunition.” The relevant federal provision prohibits possession of firearms by anyone who is “an unlawful user of or addicted to any controlled substance.” Since federal law does not recognize any legitimate reason for consuming cannabis, all use is unlawful use, as the Bureau of Alcohol, Tobacco, Firearms, and Explosives makes clear in a boldfaced warning on the form that must be completed by anyone buying a gun from a federally licensed dealer: “The use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medicinal or recreational purposes in the state where you reside.”

The same nice folks who shake with fury at the idea that the Attorney General would enforce federal law against weed in disregard of state law legalizing it suddenly pause for a moment. Oh wait, those guns we hate so much go too? They won’t kill too many brain cells pondering the conundrum, sloughing it off on with a quip about dark clouds and silver linings.

Last year the U.S. Court of Appeals for the 9th Circuit, which includes Hawaii, upheld the ATF’s policy of banning gun sales to people who are known to have medical marijuana cards, even if they do not currently consume cannabis. The appeals court reasoned that possessing a medical marijuana card is a good if imperfect indicator of illegal drug use, which is in turn associated with violence, “impaired mental states,” and “negative interactions with law enforcement officers.” The 9th Circuit concluded that there is a “reasonable fit” between the ATF’s policy and a substantial government objective, which means it passes “intermediate scrutiny” and is consistent with the constitutional right to keep and bear arms.

Despite Heller and McDonald, the circuits have never really given the Second Amendment the time of day. The Supreme Court may have called it a fundamental right, Scalia’s errant paragraph notwithstanding, The problem hasn’t been the Supreme Court’s rulings, so much as the circuit courts’ testing the ruling by refusing to give it the full force Heller would require. If it’s a fundamental right, then treat it as such.

But courts don’t really like people having guns. Cops surely don’t, except for themselves. And so they will push back on Heller, to the applause of those who blame guns for doing what twisted people do with them. Let SCOTUS grant cert in every case where the circuit rules “ain’t gonna do it,” and reverse them. It will never happen, because the Supreme Court won’t take up a never-ending series of small, parochial gun cases, the parties can’t afford to keep pursuing litigation, and eventually SCOTUS will be forced to deal with the errant paragraph, which will make it look like silly equivocators.

Plus, there is an inherent problem with the Second Amendment, that as much as the Supreme Court has held it to be a right, it’s one that a great many hate. And to drive this point home a bit harder, a great many of those who vehemently support the Second Amendment fail to support other constitutional rights, making them hypocrites and unworthy allies when they express their own self-interested demand for their rights. They just refuse to accept that it’s a bundle.

But if medical marijuana use serves as an “imperfect indicator of illegal drug use, which is in turn associated with violence, ‘impaired mental states,’ and ‘negative interactions with law enforcement officers.'” the door is wide open to denying users a panoply of rights and interests.

Take driving, which isn’t a right but a privilege. Want the guy in the car next to yours, with your kids in the back seat, stoned? Of course not. But what of actual rights, like voting or serving on a jury? Should people choose the president of the United States while high? Should the smell emanating from the jury room have that special pungency reflecting an “impaired mental state”? Pick a right and play it out.

Hawaii is using its registration regimen for medical marijuana users as proxy for raving lunatics. In New York, paper scripts are history and all prescriptions are now done electronically, where the feds have access to whatever little pill you’re taking. Individually, this may well make some sense, but when you connect the dots, you realize how the overlap can be used for unintended purposes.

But for the moment, it’s guns. And you hate guns, because guns are evil, so you won’t say anything. Except while it may just be guns, once the path is established for conditioning rights on behaviors approved by the government, someone will get the bright idea that other behaviors, similarly disapproved by some scold, should be similarly denied. And by that point the law will be established, and it all started with the dreaded guns.

8 thoughts on “Two Wrongs And One Right

    1. SHG Post author

      Last time I went shooting was in Oklahoma City a few months back. My aim was still pretty good, but I got bored after the first ten rounds. It’s just not my thing.

  1. Stan

    And some people can’t comprehend why many gun owners oppose gun registration… ( For what it is worth, I am not a gun owner)

    1. SHG Post author

      The govt wants us to do everything in a way they can keep track of, which is why they’re trying desperately to rid us of paper currency as well as require registration for breathing. It’s not just guns.

      1. KP

        “require registration for breathing”
        Already got that covered..
        You must be registered when you have a birth and de-registered when you have a death.

        They tax for the time in between while you are breathing.

  2. Michael Woodward

    It would be truly excellent theater to see this lead to an alliance of pot users and the NRA. We’ve got the guns and weed covered – who’s bringing the popcorn? As Brewer & Shipley put it, that’s one toke over the line.

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