Will Gun Control Laws Soften for Cannabis Users?

13 Feb Will Gun Control Laws Soften for Cannabis Users?

The federal Gun Control Act of 1968 deems cannabis users “prohibited persons” who cannot legally own or possess firearms. In the past, numerous petitioners failed to overturn convictions under this law. That is now changing. In a recent case known as United States v. Harrison, a federal court ruled that cannabis use alone does not disqualify someone from their right to possess firearms. Today, I want to discuss the case and why it is so significant.

For reference, is how the Harrison court summarized the relevant provisions of the Gun Control Act:

The statute initially prohibited any individual who was “an unlawful user of or addicted to marihuana or any depressant or stimulant drug . . . or narcotic drug” from receiving a firearm, but it was amended in 1986 to broadly prohibit the receipt or possession of a firearm by any person who “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)).” In its modern form, [the law] thus strips a person of their fundamental right to possess a firearm the instant the person becomes an “unlawful user” of marijuana. And in the United States’ view, all users of marijuana are “unlawful users.”

Indeed, this is how the federal government interprets the law. The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) requires firearm purchasers to complete a form named ATF 4773, which requires the applicant to respond “yes” or “no” to the following question:

Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?

Warning: 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.

If an applicant answers “yes” to this question, their application will be denied. If they are in fact a marijuana user – even someone who uses medical or recreational marijuana in a state where it is fully legal – but answer no, they can be charged with a crime. So in sum, the federal government believes that even state-legal cannabis users should be stripped of their Second Amendment rights.

Now back to the Harrison case. What makes this case different from some of the past attempts to declare unconstitutional federal firearm restrictions is that it was decided in the wake of the United States Supreme Court case, New York State Rifle & Pistol Association, Inc. v. Bruen. I won’t analyze the Bruen case here, except to note that it simplified the test courts use to evaluate whether a firearm right is infringed.

Under Bruen, courts evaluating Second Amendment cases must look to whether the Second Amendment’s plain text applies to a person’s conduct. If it does, the person is presumed to have Second Amendment protection unless the government can show that the restriction is “consistent with the Nation’s historical tradition of firearm regulation.”

The first issue was easy enough for the court to resolve. Harrison is a U.S. citizen and therefore has Second Amendment rights. You would think this might be the end of the analysis, but the federal government even went so far as to argue that Harrison did not have all of his rights under the federal Constitution: “The United States argues, however, that marijuana users are lawbreakers, and lawbreakers aren’t part of ‘the people’ whose rights are protected by the Constitution.” Whether or not you support firearm ownership rights, the assertion that a person no longer has constitutional rights if they use marijuana is frankly astonishing and could lead to some dark places if unchecked.

The meat of the court’s analysis was the second point – whether gun control measures for cannabis users are “consistent with the Nation’s historical tradition of firearm regulation.” To do this, the court noted:

Because “[c]onstitutional rights are enshrined with the scope they were understood to have when the people adopted them,” historical analogues in existence near the time the Second Amendment was adopted in 1791 are of primary relevance.

The court’s opinion is long and I won’t summarize it all here. If you are interested in the case, like reading about U.S. history, or just like reading a series of massive legal footnotes, I recommend giving it a read. But suffice it to say, the court disagreed that completely stripping cannabis users of their Second Amendment rights was consistent with historical gun control measures.

It is important to understand that this case does not change gun control jurisprudence overnight. It is a district court decision from a federal court in Oklahoma that is not precedential anywhere else, or even necessarily within the district. The court did not purport to overturn the law but just to dismiss a federal indictment.

We presume that this case will be appealed to the federal appellate court and possibly to the United States Supreme Court given its implications, and also suspect that other federal courts will issue similar rulings in the coming months and years. The result could restore Second Amendment rights to many cannabis users who have been denied them.

Whether or not readers of the Canna Law Blog support gun control, it’s safe to say that the vast majority of you do not support subjecting people to different governmental controls because they use cannabis. Stay tuned to the Canna Law Blog for more updates on cannabis gun control issues.