Blowing Smoke at the Second Amendment

Abstract

The Second Amendment to the United States Constitution codified the preexisting right to keep and bear arms, meaning the right was enshrined within the scope it was understood to have at its inception. When enacted, the Second Amendment broadly protected the right to keep and bear arms for self-defense, only restricting gun ownership for certain classes of people, such as the mentally ill or felons. However, these historical restrictions never encompassed marijuana users or possessors. Quite the opposite, many of the founding fathers grew or manufactured cannabis themselves. Despite this discrepancy, the Federal Government enacted §922(g) in the Gun Control Act prohibiting gun owners and applicants who are medical marijuana patients from owning or possessing a firearm. Further, such individuals must voluntarily disclose their medical marijuana use to the government, restricting their right to keep and bear arms and implicating the Fifth Amendment’s Privilege Against Self-Incrimination. This paper will explore the consequences of the enactment and continued enforcement of §922 against an individual’s right to keep and bear arms while possessing or using medical marijuana in accordance with their state’s medical programs.