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By Griffen Thorne, Attorney at Harris Sliwoski
Big federal law changes in cannabis regulation are on the horizon. One area where I expect a lot of movement in the coming years is with respect to gun rights. I write on this topic fairly extensively, and you can see my links below. Today I want to talk about what changes I think are on the horizon.
Before I give my predictions, I want to summarize the state of the law. If you’re looking for more of a deep dive, I again encourage you to check out my posts below.
Today, what I’ll say is that federal law prohibits gun purchases and ownership by a person who is an “unlawful user of or addicted to any controlled substance” under the Controlled Substances Act (CSA). Anyone who buys a gun must fill out an ATF form certifying that they do not meet this criteria, even in states where marijuana is legal. If a person lies on the form, they face felony charges. This is one of the allegations leveled against Hunter Biden. If a person says they use marijuana on the form, they cannot buy a gun and the gun seller cannot sell them a gun.
In 2022, the U.S. Supreme Court decided New York State Rifle & Pistol Association, Inc. v. Bruen, which created a new test to evaluate whether Second Amendment restrictions are constitutional by answering two questions: (1) is the challenger a person with Second Amendment rights, and (2) is the restriction “consistent with the Nation’s historical tradition of firearm regulation”? Bruen had nothing to do with cannabis users’ gun rights, but many courts have used the test to hold that the federal laws discussed above are unconstitutional.
With that in mind, here are some of my predictions.
1. Rescheduling won’t change the status quo
The biggest cannabis news of 2023 was the potential that cannabis will be rescheduled to schedule III of the CSA. If that happens, I expect that some people will be confused and think that cannabis users can then purchase or possess firearms. However, the federal law that I cited above makes no distinction between CSA schedules. An unlawful user of a schedule I, III, or even V substance will be barred from firearm ownership and possession. Rescheduling will have no impact on this. Unfortunately, some people may even wind up facing legal consequences for misunderstanding the effect of rescheduling.
2. Courts will invalidate federal restrictions on gun rights
As mentioned above (and in many of my below posts), almost every court that has looked at the constitutionality of laws restricting cannabis users’ gun rights post-Bruenhas found those restrictions unconstitutional. The meat of the analysis focuses on whether there is a historical tradition of restricting gun rights for people who use controlled substances.
Courts have done meticulous analyses of literally hundreds of years’ worth of laws, and nearly unanimously held that there was no such tradition. Courts have found some cases in which intoxicated people have been stripped of rights, but only while intoxicated. And as they have noted, there is simply nothing analogous to the current federal restriction.
So what I expect to happen is that the issue will be resolved in the federal courts. We may see a U.S. Supreme Court case. We may also see more federal appellate decisions. But with the amount of cases already winding their way through the federal judiciary, and nearly uniform results, it’s hard to see how things could be resolved any other way.
3. Federal and state governments will not easily adapt to court-mandated changes
Let’s assume that the U.S. Supreme Court completely overturns the federal restrictions on cannabis users’ gun rights. Will the ATF and state agencies simply change course immediately? I think not. More likely, I think a few things will happen.
First, I think ATF will drag its feet in modifying the ATF form that requires purchasers to certify that they don’t use controlled substances (the Form 4473). It could take weeks or even months before the form is changed, and during that period it’s unlikely that federal firearms licensees (FFLs) will sell firearms to people who respond affirmatively to the question.
Second, I think that there will be a push to pass another law, or maybe even some kind of federal regulation, that will pose additional hurdles for cannabis users. For example, there could be a law or regulation that prohibits intoxicated individuals from possessing firearms, and while that may withstand judicial scrutiny in concept, it’s easy to see how ambiguities in what it means to be “intoxicated” could lead to government overreach.
Third, as I predicted before, it’s entirely possible that federal or state governments could prosecute individuals for allegedly lying on ATF 4473s prior to the federal change.
Fourth, expect states to go far beyond the federal government in trying to regulate this. More on that below.
4. Concealed carry laws will be the next battleground
Assume my prediction in point 2 above is correct and cannabis users’ gun rights are restored. I expect the next big battleground to be over carrying concealed weapons (commonly referred to as CCWs). In many states, concealed or even open carry is considered a legal right. However, many other states made CCWs very difficult to obtain.
Bruen held that states cannot require CCW applicants to show some kind of good-cause, special need for a CCW. In other words, as the court held, anyone is entitled to self-defense. Following Bruen, states are required to issue CCWs but can impose certain objective requirements like passing a background check. The current CCW regime post-Bruen is often referred to as “shall-issue” but as you’ll see, that’s a misnomer in many jurisdictions.
Take California. After Bruen, CCW applications skyrocketed because of the shall-issue standard. In 2023, the state legislature passed SB-2, which, among other things, prohibited CCW holders from carrying in a host of public areas – so much so that a CCW would have been nearly meaningless. A federal judge recently held that SB-2 was clearly unconstitutional, and federal courts first stopped, and then allowed his order to stand. The issue is far from resolved and things could change a lot in the coming months. If you are looking for a succinct summary, you can check out Jacob Sullum’s reporting at Reason, most recently here.
My point here is that even though the Supreme Court’s holding in Bruen was very clear, states will try to find ways to pare back the outcomes of these cases. States will probably realize that they cannot predict cannabis users from owning firearms if the Supreme Court holds that way, but they are very likely to fight the court on things like issuing CCWs, permitting public carrying, etc. when it comes to cannabis users.
States may be able to narrowly craft laws that restrict cannabis user’s ability to possess or user guns they can legally own if they are under the influence. But based on what is happening with SB-2 and other similar issues, it’s probably not going to be narrow and there will probably be a whole lot of court battles going forward.
Reprinted with the permission of Harris Sliwoski
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