ATF Clings to Cannabis Gun Rights Restrictions
Written by on June 8, 2023
Cannabis users cannot own or possess firearms under federal law. This is true even in states where cannabis is legal, and even for medical patients. These gun rights are very likely going to be held unconstitutional. But the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) is clinging to them nevertheless.
I’ve written pretty extensively on the federal laws that strip cannabis users of gun rights, and link to my older posts below. But the basis is that current federal law prohibits cannabis users from owning firearms. Even in states that legalize cannabis, gun buyers must fill out an ATF 4473 form which asks for a “Yes” or “No” to the following:
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.
Persons who answer “no” when they should have answered “yes” may face felony charges (more on that below). Persons who answer “yes” must be denied a firearm– again, even in states that allow cannabis use. A federal firearm license (FFL) holder that sells a firearm to such a person risks loss of license and even potential prosecution – as the ATF reminded FFL holders in Michigan when Michigan legalized recreational cannabis in 2020.
In the years since 2020, however, a lot of things have changed. For one, in 2022, the U.S. Supreme Court decided New York State Rifle & Pistol Association, Inc. v. Bruen, dramatically changing the test that courts must use to evaluate gun rights restrictions. In the wake of Bruen, a federal court circuit split is brewing. Since I’ve written about that at length, I won’t re-analyze it here. I will say, however, that I believe that federal gun rights for cannabis users will be held unconstitutional.
Nevertheless, ATF is apparently digging its heels in. Right after Minnesota legalized recreational cannabis, the ATF’s St. Paul field office dropped a news release that gently reminds Minnesotans that they can’t have both cannabis rights and gun rights. For the time being, that will remain the law. Until enough courts declare these restrictions unconstitutional, the ATF will not allow FFL holders to sell cannabis users guns. And federal authorities will prosecute cannabis users who own guns.
One other interesting development that could have an influence on this issue bears mention. As noted, misrepresentations on the ATF 4473 can lead to felony charges. The federal government is reportedly investigating President Biden’s son, Hunter Biden, for allegedly answering “no” to the above question when he was using controlled substances. Attorneys for Hunter Biden have noted that if charged, Hunter would challenge the constitutionality of these restrictions under the Second Amendment. So while there are ample pending challenges already working themselves through the federal judiciary, we may see yet another, highly publicized case in the coming months or years.
If you are interested in additional posts on cannabis and gun rights, please check out some of my older posts below. And of course, stay tuned to the Canna Law Blog for more details.