State Cannabis Gun Right Laws Won’t Work

In the past few weeks, I’ve published a few posts (here and here) about recent federal cannabis gun rights cases. In those cases, the courts disagreed on whether the federal government can prohibit cannabis users from owning guns. On the other end of the spectrum, there are state-level efforts to protect gun rights for cannabis users. They aren’t going to work, and I’ll explain why below.

To set the stage a bit, current provisions of the federal Gun Control Act of 1968 deems cannabis users to be “prohibited persons” who may not legally own or possess firearms. Cannabis users have no gun rights even if they live in states that allow medical and/or recreational marijuana. These gun control laws are what have been at stake in the federal cases I described above. They are likely to be litigated in yet other federal court cases and – unless Congress finally does its job and legalizes cannabis – has a strong chance of making its way to the U.S. Supreme Court.

In the meantime, states are going to start doing what they’ve done since the late 90s – taking matters into their own hands. A good example of this is Missouri, which in 2021 passed House Bill 85, which was referred to as the Second Amendment Preservation Act (SAPA). SAPA, interestingly, does not mention marijuana at all. The law takes a more circuitous aim at federal intervention via gun control laws. Specifically, section 1.420 says:

The following federal acts, laws, executive orders, administrative orders, rules, and regulations shall be considered infringements on the people’s right to keep  and bear arms, as guaranteed by Amendment II of the Constitution of the United States and Article I, Section 23 of the Constitution of Missouri, within the borders of this state including, but not limited to:

(1) Any tax, levy, fee, or stamp imposed on firearms, firearm accessories, or ammunition not common to all other goods and services and that might reasonably be expected to create a chilling effect on the purchase or ownership of those items by law-abiding citizens;

. . .

(4) Any act forbidding the possession, ownership, use, or transfer of a firearm, firearm accessory, or ammunition by law-abiding citizens; and
(5) Any act ordering the confiscation of firearms, firearm accessories, or ammunition from law-abiding citizens.

Because qualifying individuals could use medical marijuana in accordance with Missouri law, SAPA declared federal gun control laws to be infringements of those persons’ rights. And section 1.430 of SAPA therefore held such infringing laws “invalid” and incapable of enforcement within the state.

Before getting into the controversy here, it’s worth pointing out there there are at least some plausible arguments in favor SAPA under the Tenth Amendment to the U.S. Constitution. As Reason pointed out back in 2021: “The Controlled Substances Act even contains a 10th Amendment-like clause which says when in ‘positive conflict’ between state and federal law where both cannot stand, that state law should take precedence in areas that would ‘otherwise be within the authority of the state.'” The problem is that up until now, I’m not aware of any court accepting a Tenth Amendment claim for marijuana rights.

As you might expect, the federal government didn’t much care for SAPA. Indeed, it sued the state of Missouri, and in early March 2023 handily defeated the state – SAPA violated the Supremacy Clause, it was preempted by federal law, and so on. I won’t get into the weeds on this one, but suffice it to say, Missouri lost and lost hard.

Now let’s just assume for a second that Missouri had prevailed or a different state passed a similar law. At the end of the day, firearm sellers must still have federal firearms licenses (FFLs) and comply with federal laws. One of those laws is the gun control law that’s led to this mess in the first place. That law says in plain terms that:

It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person, including as a juvenile—

. . .

(3) is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)) . . . .

Even if SAPA or a comparative law provided a shield against these federal laws, FFL holders would still risk their licenses if they violated the law. So in reality, the law seems more symbolic than anything else.

The bottom line is that if marijuana users are to ever have gun rights restored, they need to focus in on changing federal law. With a potential circuit split on marijuana gun rights emerging, that may happen in the near future. Stay tuned to the Canna Law Blog for more updates.

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Ohio Law Enforcement Is Suing Afroman for Use of Security Footage Online

In September 2022, Afroman’s home residence in Ohio was raided by local law enforcement. While Afroman wasn’t home, his private security camera system recorded them searching his property as they rifled through his clothes and other belongings looking for drugs or other illegal paraphernalia. Afroman posted videos of these law enforcement officers on his social media channels, with commentary making fun of them as they searched his house. He even made two music videos using the footage entitled “Lemon Pound Cake” and “Will You Help Me Repair My Door.”

Now, seven Adams County Sheriff’s Department officers are suing him because of his use of the footage without their consent. According to the lawsuit, exposing people’s faces without consent is a misdemeanor under the Ohio Revised Code. The officers are also suing because their faces were publicly visible, which caused “emotional distress, embarrassment, ridicule, loss of reputation and humiliation.”

The plaintiffs claim that they’re entitled to Afroman’s proceeds gained from the songs, as well as music videos and live event tickets, in addition to his brand, which offers beer, cannabis, T-shirts, among other things. In addition to this, they’re asking that Afroman remove all videos and photos that feature them online.

Afroman posted a response to the lawsuit on all of his social media channels. “Essentially a racist judge signed a fictitious false warrant, lying on the warrant, accusing me of kidnapping and drug trafficking,” Afroman wrote. “The warrant put the Adams county sheriff in a position to attempt to kill me. After the Adams County Sheriff. Burglarized vandalized and destroyed my property. They became thieves and stole my money. After they stole my money they became criminals. After they became criminals they lost their right of privacy.”

Afroman’s attorney, Anna Castellini, also issued a statement about their next move. “We are waiting for public records requests from Adam’s county we still have not received,” Castellini said. “We are planning to counter sue for the unlawful raid, money being stolen, and for the undeniable damage this had on my clients family, career and property.”

Law enforcement obtained a warrant to search Afroman’s home in August 2022 with probable cause that they would find drugs and drug paraphernalia. The only items that were allegedly seized were a vape pen, a few roaches, and thousands of dollars in cash. Ultimately they did not find any evidence of drugs or paraphernalia and no charges were filed. 

The law enforcement officers claim they’ve become the subject of ridicule by Afroman fans, which has made it “more dangerous” for them to continue working, and have received death threats “by anonymous members of the public who have seen some of Defendant’s above-described postings.” The lawsuit claims that “Defendants’ actions were willful, wanton, malicious, and done with conscious or reckless disregard for the rights of the Plaintiffs.”

In Afroman’s most recent post on TikTok on March 24, he points out how Adams County is home to meth labs, but they chose to raid his home instead.

In December 2022, Afroman announced that he’s running for president in 2024. “My Fellow Americans, there comes a time in the course of human events when change must be affected,” Afroman wrote on Instagram. “That time is now. Americans are suffering, and the status quo is no longer acceptable. Inflation is out of control. The economy is in shambles. The housing market is staggering. Politicians are corrupt. Bad apples are allowed to remain in law enforcement, amongst our noble and brave officers.”

The self-described “Cannabis Commander in Chief” and “Pot Head of State” claims that he would tackle cannabis reform and criminal justice reform, among other top priority issues.

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Leafly Buzz: 13 top cannabis strains of March

Including Duck Sauce, Apple Butter, and Mitten Cake Batter.

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Florida Tries Again

Florida voters may have the opportunity to legalize adult-use cannabis during the next general elections. First, though, the Florida Supreme Court must okay the language on the ballot initiative, in the face of likely opposition from the other branches of the state government. As Floridians watch their elected officials argue against letting them vote on the issue of cannabis legalization, they will have a chance to ponder just how free Florida is.

Procedural requirements to legalize cannabis in Florida

Under the Florida Constitution, initiative sponsors must collect a certain number of signatures to get the initiative on the ballot. Prior to that, the initiative must be reviewed by the Florida Attorney General and the Financial Impact Estimating Conference (FIEC). For these reviews to take place, sponsors must have already collected 25 percent of the total number of signatures required. The sponsors of the current initiative have already reached that threshold.

By law, the Attorney General must request an advisory opinion from the Florida Supreme Court, “regarding the compliance of the text of the proposed amendment or revision with s. 3, Art. XI of the State Constitution, whether the proposed amendment is facially invalid under the United States Constitution, and the compliance of the proposed ballot title and substance with [Section] 101.161 [of the Florida Statutes].” The cited section of the Florida Constitution requires that proposed amendments “embrace but one subject and matter directly connected therewith.” This is sometimes referred to as the “single-subject requirement.” For its part, Section 101.161 stipulates that a summary of any proposed amendment be printed in “clear and unambiguous language” on the ballot.

How Florida cannabis legalization failed in 2022

The current push to get legalization on the ballot follows an earlier, failed effort in the leadup to the 2022 election. Back then, the Florida Supreme Court struck down the proposed ballot on the grounds that it failed to meet the requirements of Section 101.161. The court found that the use of the verb “permits” in the ballot summary would have misled voters “into believing that the recreational use of marijuana in Florida will be free of any repercussions, criminal or otherwise,” when in fact the underlying conduct would remain criminalized under federal law.

Opponents of the 2022 initiative (a group that included both chambers of the Florida Legislature and the Attorney General) argued that the proposed amendment was in fact facially invalid under the U.S. Constitution. The Florida Supreme Court, however, chose not to address the issue, instead basing its decision solely on its interpretation of Section 101.161. If the language of the current initiative is not open to attack on grounds that it violates the single-subject and/or ballot title and substance requirements, expect opponents to push the federal constitutional argument more vigorously.

The Florida Supreme Court’s decision on the 2022 ballot initiative suggests it might be amenable to such an argument. While ostensibly it rejected the proposed amendment due to a deficiency in the ballot language, the court’s application of the relevant statute was particularly strict. Dissenting from the court’s opinion, Justice Lawson noted that the court had “never required that a ballot summary inform voters as to the current state of federal law.” The court’s posture, Lawson argued, was “in direct violation of the deferential, nonpaternalistic rules and presumptions that have historically governed our decisions in this area.” Would the outcome have been different if the subject matter of the amendment had not been cannabis?

Florida should allow its voters to decide on cannabis legalization

While Florida state officials have every right to oppose cannabis legalization, it is strange to see some of them do so by seeking to curtail Florida’s exercise of its own sovereignty and denying Floridians the opportunity to express their views at the ballot box. If anything, Florida officials should be pushing back against the federal government’s questionable use of its authority under the U.S. Constitution’s Commerce Clause to regulate cannabis-related activities. After all, one would expect self-styled Free Florida to be at the forefront of the fight against federal overreach. And what better way to do this than by letting Floridians, not federal or state government officials, decide the kind of cannabis laws they want in the Sunshine State.

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Psychedelic Therapy in Australia Likely To Cost Thousands

Patients in Australia will soon have legal access to the psychedelic drugs psilocybin and MDMA under a plan announced by regulators last month. But with no approved source of the drug available to therapists, patients will likely face bills in the tens of thousands of dollars to obtain the promising treatment.

Last month, the Therapeutic Goods Administration (TGA), the Australian government’s medicine and therapeutic regulatory agency, announced that qualified psychiatrists will be able to prescribe the psychedelic drugs psilocybin and MDMA for the treatment of certain mental health conditions beginning later this year. But the agency has not approved any products containing the promising psychedelic drugs, leaving mental health professionals to source the drugs themselves. Without a government subsidy to help cover the cost of the medications, psychiatrists estimate that patients will have to pay as much as AU$25,000 (nearly $17,000) and more out of pocket for psychedelic-assisted therapy.

“For the actual patient, it might be $25,000, $30,000 for a treatment,” said Dr. Stephen Bright, a senior lecturer at Edith Cowan University and director of the charity Psychedelic Research In Science & Medicine.

“I honestly don’t think, for the next 12 to 18 months post July 1, that these treatments will be very widely available at all,” he added. “The tight controls of therapy mean there are very few psychologists who put their hand up. There will be a few clinics that open up, but I don’t think we’re going to see the floodgates open.”

Dr. Paul Liknaitzky, the head of the Clinical Psychedelic Lab at Monash University, revealed last month that he and other mental health professionals will be partnering with investors to open a psychedelic-assisted therapy clinic in Melbourne. But training requirements for therapists and detailed guidelines for such therapy have yet to be issued by government regulators.

“There is a lack of detailed clarity from the TGA to help us understand how it’s going to roll out. We are concerned but cautiously optimistic,” he said.

Liknaitzky said that he and his colleagues will help establish protocols that set high standards for ethical and effective psychedelic-assisted therapy. But he warned that the high cost of treatment might make the treatment inaccessible to most Australians.

“Sensible and safe treatment approaches, based on decades of best-practice development, will include considerable screening, psychotherapy and other support. A typical course of treatment, spanning a few months, may be in the order of $25,000, plus or minus $10,000,” he said. “If it turns out to be cost-effective, it will be in the government’s interest to fund it.”

Psychedelic-Assisted Therapy Shows Promise

Ongoing research has shown that psilocybin, the primary psychoactive compound in magic mushrooms, has the potential to be an effective treatment for several serious mental health conditions, including PTSD, major depressive disorder, anxiety and substance misuse disorders. A study published in 2020 in the peer-reviewed journal JAMA Psychiatry found that psilocybin-assisted psychotherapy was a quick-acting and effective treatment for a group of 24 participants with major depressive disorder. 

Separate research published in 2016 determined that psilocybin treatment produced substantial and sustained decreases in depression and anxiety in patients with life-threatening cancer. And in 2021, a study published in the journal NatureMedicine determined that MDMA, commonly known as ecstasy, is a highly efficacious and safe treatment for individuals with severe PTSD.

But Professor Chris Langmead of the Monash Institute of Pharmaceutical Sciences says that it is unlikely that public health agencies will cover the cost of such treatment until further research including a cost-benefit analysis has been completed.

“We’re trying to get a groundswell of research and funding so we can do the research, clinical studies and practice rollout [to ensure] that this is not purely a market-led solution where the most disadvantaged populations are missing out,” he said. “The TGA has put Australia at the forefront of the world and we really need to take the opportunity and make the most of it.” 

University of Melbourne associate professor Gillinder Bedi said that a shortage of clinical staff trained in psychedelic-assisted therapy will also make the treatment difficult for patients to obtain.

“The infrastructure will get set up. There will be clinics. But the problem is we don’t have staff. People can’t even see psychiatrists under normal conditions,” she said. “If you put two clinical psychologists in a room for eight hours, at a [Medicare] billing rate of $120 an hour – which is not what people charge, they charge $200 to $300 – you have an enormously expensive treatment. I think it could get higher [than $25,000].

“No matter which way you look at it, it will take time away from other treatments and cost a whole bunch of money. It’s unclear who will foot the bill, some organizations are trying to set up philanthropic funding,” Bedi added. “But it’s going to be for people with money, in the initial stages at least.”

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Medical Cannabis Cultivation Bill Approved in New Hampshire House

House Bill 431 was introduced on Jan. 5, 2023, and has proceeded through numerous sessions and hearings before passing in the House on March 22. If passed, it would allow patients as well as caregivers to cultivate up to three mature plants, three immature plants, and 12 seedlings at home. Additionally, HB-341 would also increase the number of plants that medical cannabis dispensaries can grow, with 80 mature plants, 160 immature plants, and an endless number of seedlings.

The bill requires that patients report their cultivation to the Department of Health and Human Services, and as a qualifying patient or caregiver, would be protected from arrest by state or local law enforcement or penalty under state or municipal law.

During the hearings that have been conducted so far, two concerns have been discussed, according to Rep. Erica Layon of Health, Human Services and Elderly Affairs. “This bill as amended provides a framework for therapeutic cannabis patients or their caregivers to grow cannabis with restrictions. This bill addresses two major problems for this community—access and price,” said Layon during a meeting on March 17. “The closest Alternative Treatment Center (ATC) may be far away and the cost of this product is high. Most therapeutic cannabis patients will continue to purchase their product from ATCs and those who choose to grow their own will be able to purchase seedlings from the ATC or grow from seeds according to their preference. This bill has broad support from stakeholders including patient representatives, ATCs and the department.”

Rep. Wendy Thomas, one of the sponsors of HB-341, tweeted about the bill’s progress so far. “Passed on a voice vote of the Consent Calendar—HB-431—Therapeutic home-grow now moves to the Senate One step closer. Thanks to all of the many advocates who have worked to make this happen. Let us not take our foot off the gas until we get this signed,” she posted on March 22. The bill now heads to the senate for further consideration.

On Twitter, Prime Alternative Treatment Centers Director of Public and Government Relations Matt Simon shared that he believes this is the 11th time that a medical cannabis cultivation bill has passed through the House since 2009. According to Simon, only four of those bills passed through the Senate.

As of January, New Hampshire Gov. Chris Sununu’s office predicts that cannabis legalization will not reach his desk. “It’s failed in the Senate repeatedly, in both Republican-held years and Democrat-held years,” Sununu’s office said in a statement to New Hampshire Public Radio. “With teen drug use and overdoses on the rise, it is not anticipated that the legislature will see this as a time to ignore the data and move it forward.”

House Bill 360 also recently passed in the House on March 21, which would legalize adult-use cannabis by removing cannabis from the state’s list of banned substances and removing any criminal penalties for cannabis offenses. While cannabis would be legal to possess, cultivate, and purchase, it does not implement any tax or regulation program. It has also moved to the Senate for further consideration.

House Bill 639 has also been making its way through the House. If passed, it would legalize possession, cannabis sales, and gifting of up to four ounces, create a Liquor and Cannabis Commission to manage industry regulations statewide, implement taxes for cultivators, and much more. The latest hearing was held on March 20.

Rep. Anita Burroughs spoke during a floor debate for HB-639 on Feb. 22, and explained that it is “good legislation that is the result of the goodwill and diligent work of both political parties.” “We can now join other New England states that offer safe, regulated and a profitable cannabis industry to their citizens,” she continued.

Other representatives expressed their excitement when HB-639 passed on Feb. 22. “I cast my vote on cannabis legalization from seat 4-20!” Tweeted Rep. Amanda Bouldin. “We did the damn thing #blazeit” Rep. Jessica Grill shared.

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How to make a weed budget

It's easy to burn through your bud just like your paycheck. Here's how to ensure you have enough green, of all kinds, to go around.

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