Medical Marijuana and the Second Amendment: Eleventh Circuit Revives Second Amendment Challenge to Federal Ban on Gun Ownership for Drug Users

By V.R. Bohman and Derek Flint

In a recent decision, Florida Commissioner of Agriculture v. Attorney General,¹ the U.S. Court of Appeals for the Eleventh Circuit vacated a district-court dismissal of an as-applied Second Amendment challenge to 18 U.S.C. § 922(g)(3) and § 922(d)(3), which prohibit unlawful drug users from possessing or being sold firearms. The lawsuit was brought by Florida medical-marijuana patients and a prospective patient who already owns a firearm. The panel held that, at the pleading stage, the federal government failed to demonstrate that disarming state-law-compliant medical-marijuana users is “consistent with the Nation’s historical tradition of firearms regulation.” The decision marks the first time a federal appellate court has allowed marijuana users to move forward on such a claim since the U.S. Supreme Court’s decisions in New York State Rifle & Pistol Association, Inc. v. Bruen and United States v. Rahimi. This is particularly notable given that marijuana remains illegal under federal law.

Factual and Procedural Background

Florida residents Vera Cooper and Nicole Hansell lawfully use marijuana under Florida’s medical-marijuana program. When each attempted to purchase a firearm, federal Form 4473 required them to answer whether they were “unlawful users” of a controlled substance; answering “yes” blocked the transactions. Neill Franklin, a retired law-enforcement officer, already owns a firearm but declined to enroll in Florida’s medical-marijuana program because doing so would expose him to federal prosecution and dispossession.

Plaintiffs sought declaratory and injunctive relief, arguing that the federal statutes and their implementing regulations are unconstitutional as applied to state-law-compliant medical-marijuana users. The district court dismissed all three Plaintiffs’ claims, holding that the challenged provisions of federal law are consistent with historical analogues disarming criminals and individuals who are deemed “dangerous,” like alcoholics and the mentally ill.

The Eleventh Circuit’s Analysis

In evaluating the Plaintiffs’ as-applied challenge, the Eleventh Circuit applied Bruen’s now-familiar two-step analysis, which requires courts to consider (1) whether the Second Amendment’s plain text covers a party’s conduct, and (2) if the Second Amendment’s plain text does cover the conduct, whether the government has justified its regulation by demonstrating that the regulation is consistent with the Nation’s historical tradition of firearm regulation.

Step One — Covered Conduct
The panel held that attempting to buy, possess, or continue to possess a firearm for self-defense is self-evidently covered by the Second Amendment’s plain text. Medical-marijuana users are not stripped of that textual protection merely because their misdemeanor conduct violates the Controlled Substances Act.

Step Two — Historical Tradition
Under Bruen and Rahimi, the government must produce “well-established and representative” analogues. The Department of Justice offered two: (1) longstanding felon-dispossession laws, and (2) historic regulations disarming dangerous categories such as the mentally ill, alcoholics, and the intoxicated.

The court rejected the felon analogy, reasoning that possession of marijuana is a federal misdemeanor, and plaintiffs had not been convicted of any crime. Unlike felon dispossession statutes, § 922(g)(3) strips citizens of the right to bear arms without a judicial finding of guilt. The burdens therefore are not “comparably justified.”

Likewise, the Eleventh Circuit rejected the “dangerousness” analogy. Because the complaint alleged only that the Plaintiffs use marijuana only as permitted by Florida law, the Eleventh Circuit rejected the district court’s labeling of the Plaintiffs as “habitual drug users.” Without facts alleged in the complaint indicating that the Plaintiffs posed a “credible threat” akin to historic analogues, the Eleventh Circuit concluded that government had not met its burden.

Because neither analogue carried the day, the court vacated the dismissal and remanded the case to the district court. The Eleventh Circuit did, however, leave open the possibility that a more fulsome record might yet support the constitutional application of § 922(g)(3) to particular individuals.

Impact on Second Amendment Precedent

Florida Commissioner of Agriculture has the potential to impact Second Amendment precedent in several important ways, including the following:

1. Scope of “the People” Protected by the Second Amendment. Since Rahimi, firearms advocates have been concerned that courts may exclude entire groups from Second Amendment protection by labeling them as “not law-abiding” or “not responsible.” The Eleventh Circuit squarely rejected that shortcut here.

2. Status-Based Prohibitions Under Scrutiny. The opinion joins the Fifth Circuit’s Connelly decision in questioning whether § 922(g)(3) can constitutionally reach non-violent marijuana users. Challenges to other status-based bans (e.g., certain misdemeanants, categories tied to civil restraining orders, or administrative findings) may similarly demand granular and individualized support to withstand constitutional scrutiny.

3. Procedural Posture Matters. Courts must apply Bruen’s test even on a Rule 12(b)(6) motion; mere citation to broad historical themes is insufficient without factual development showing the modern burden matches an analogous historical burden.

Utility and Strategic Considerations for the Firearms Industry

Looking Ahead

The Eleventh Circuit’s opinion is not a final merits decision; the district court could still rule in the government’s favor on a more fulsome record. And the government may petition for rehearing en banc, or file a petition for writ of certiorari. Nonetheless, the ruling enhances the evidentiary burdens for the government and underscores that blanket status bans on firearm ownership often demand robust historical support.