Politics
New DOJ Rule Makes It Easier For Marijuana Users To Regain Their Gun Rights
A new Department of Justice rule intended to help restore gun rights to people who have been barred from possessing firearms contains provisions that will block officials from denying applications over the use of marijuana or convictions for cannabis-related activity.
The Federal Firearm Rights Restoration policy, announced on Monday, allows people who have been stripped of their Second Amendment rights to apply to have them restored.
The rule says that those applications will likely be denied, however, if the person is an “unlawful user of, or addicted to, a controlled substance” or has a state or federal felony conviction within the last 10 years involving “manufacture, import, export, distribution, or dispensing of a controlled substance.”
It also allows the attorney general to consider whether the applicant is “likely to act in a manner dangerous to public safety,” with one factor being their “past or present use or abuse of controlled substances.”
But the rule specifies that the definition of the term controlled substance “does not include marijuana” and that being an unlawful user of or addicted to any controlled substance “excludes those whose only unlawful use of or addiction to a controlled substance consists of the use of or addiction to marijuana.”
DOJ explained in a Federal Register filing that the cannabis exemption comes “in recognition of” a recent Supreme Court decision that found the government’s efforts to criminalize possession of firearms for marijuana consumers through a statute known as 922(g)(3) to be unconstitutional.
The department also cited “the many comments received regarding use of marijuana” that it received during the rulemaking process, noting that they “focused almost exclusively on marijuana users and argued that regular marijuana use does not render the user dangerous to the public.”
“Another presumptive disqualifier that commenters asked the Department to remove was that pertaining to drug use. Comments on this topic focused primarily on marijuana use. Some commenters believed that no public safety rationale justifies presumptively disqualifying users of controlled substances, particularly marijuana users. They pointed to post-Bruen jurisprudence emphasizing the historic tradition of disarming primarily those persons found to be dangerous, and also to the fact that nearly two-thirds of states have legalized marijuana. Some commenters also observed that if casual alcohol users are able to have their rights restored without overcoming a presumptive disqualification, then marijuana users should not be subject to such a presumption. On the other side of the issue, commenters who believed drug use was appropriately categorized as a presumptive disqualifier varied between those supporting a permanent ban and those endorsing some pathway to relief for former drug users, while one commenter opined that ‘all applicants should submit current drug test results.”
DOJ acknowledged that making changes with respect to people “addicted to” and not just users of marijuana goes beyond the facts at issue in the recent Supreme Court ruling in U.S. v. Hemani, but said that it is “necessary to improve the administrability of the restoration process.
“Whether an individual is a marijuana ‘user’ or a marijuana ‘addict’ is a highly fact-specific inquiry, and the Department would struggle to differentiate between the two on the basis of the kind of evidence likely to be submitted with an application for restoration. Further, attempting to collect and evaluate additional information to accurately differentiate between marijuana ‘users’ and marijuana ‘addicts’ would require time and resources that would defeat the administrability benefits of imposing a presumption of disqualification in the first place. Given these considerations, the Department has determined that excluding both marijuana users and marijuana addicts from §§ 107.10(g)(13)–(14) and 107.50(c) best balances the relevant policy considerations.”
Kostas Moros, director of legal research and education for the Second Amendment Foundation (SAF), told Marijuana Moment that while his group is still considering the full implications of the new filing, it is “pleased to see the DOJ acknowledge the recent Hemani ruling and adapt the rule to it, which will help a large number of affected people get their gun rights back.”
The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) in May posted a proposed revised version of Form 4473, which must be filled out by anyone purchasing a gun from a federally licensed firearms dealer, to acknowledge the federally legal status of medical marijuana under the Trump administration’s recent move to reschedule the drug.
The change is likely due to the fact that in April, Attorney General Todd Blanche issued an order that immediately moved marijuana products regulated by a state medical cannabis license to Schedule III of the Controlled Substances Act (CSA), and similarly rescheduled marijuana products that are approved by the Food and Drug Administration (FDA). A hearing to consider broader cannabis rescheduling recently concluded testimony.
Advocates expect that ATF will need to issue further changes to the gun purchase form in the wake of the court’s ruling in U.S. v. Hemani, after which it said it will be issuing guidance on cannabis consumers’ Second Amendment rights “soon.”
“Paired with likely changes from the ATF on Form 4473 for firearms purchasers who use marijuana, the massive injustice of denied Second Amendment rights for mere casual use of marijuana will soon be in the dustbin of history,” Moros of SAF told Marijuana Moment on Monday.
When it comes to users of other federal controlled substances beyond marijuana, DOJ said in the filing that “individuals prohibited from owning firearms based on drug use or addiction are among the class of persons who can take themselves out of the prohibited category simply by ending their unlawful conduct and avoiding additional drug-related conduct for a period of time—thus disrupting the ‘pattern.’ of drug use.”
“[I]ndividuals prohibited on the basis of drug use or addiction can regain the right to possess a firearm, assuming no other prohibitors apply to them, by abstaining from ongoing drug use and allowing 12 months to pass,” it said.
Blanche, in a press release about the new rights restoration rule, said that “the Second Amendment is not a second-class right, and the federal government should not permanently deprive Americans of a constitutional right without regard to whether they pose a danger to public safety.”
“This rule establishes a rigorous, commonsense process that protects the public while giving deserving Americans a real path to restoration,” he said.
The Supreme Court, in the majority opinion in the Hemani case, said that the broad ban on marijuana consumers’ gun rights and the government’s effort to defend it are “at odds with” the Trump administration’s move to federally reschedule cannabis.
The government “asks us to conclude that anyone who regularly uses marijuana is categorically violent and dangerous without any further showing,” the opinion said. “All based on little more than its current say-so, one at odds with its own regulatory actions. And affording the government that kind of ‘broad power to designate any group as dangerous and thereby disqualify its members from having a gun’ would risk allowing it to ‘quickly swallow’ the Second Amendment.”
ATF separately moved earlier this year to loosen rules that bar people who consume marijuana and other illegal drugs from being able to lawfully purchase and possess guns by making it so fewer people would be affected.
The interim final rule from ATF, which was open for public comment through June 30, seeks to update the definition of “unlawful user of or addicted to any controlled substance” under an existing policy that has been interpreted to deny Second Amendment rights to people who have used illegal substances a single time within the past year.
The Supreme Court heard arguments in the Hemani case in March, with the Trump administration urging the justices to uphold the ban on gun possession by marijuana users.
The federal government has consistently maintained its position that the law appropriately disarms marijuana users who, they claim, are uniquely dangerous. To meet a strict Supreme Court standard for firearm laws, the Department of Justice has also drawn sometimes eyebrow-raising comparisons between cannabis consumers and the mentally ill and habitual drunkards to establish a historical analogue that aligns with the country’s founding era.
“Those laws, the government contends, demonstrate a tradition of firearm regulation consistent with its effort to disarm any regular user of any controlled substance without any further showing. But the government’s analogy fails under every measure it asks us to consider,” the court’s opinion issued on Thursday says. “The historical laws on which it relies targeted different kinds of people, did so for different reasons, and operated in different ways. And faced with all these shortcomings in the government’s submission, we cannot say it has carried its conceded burden of showing its prosecution of Mr. Hemani complies with the Second Amendment.”
Trump administration Solicitor General D. John Sauer, for his part, told the Supreme Court in a brief that people who use illegal drugs “pose a greater danger” than those who drink alcohol.
In a separate filing for the case, the Justice Department also emphasized that “the question presented is the subject of a multi-sided and growing circuit conflict.” In asking the court to take up the dispute, the solicitor general also noted that the defendant is a joint American and Pakistani citizen with alleged ties to Iranian entities hostile to the U.S., putting him on the FBI’s radar.
In December, attorneys general for 19 states and Washington, D.C. filed their own brief siding with the federal government in the Hemani case, insisting that justices should maintain the current § 922(g)(3) statute. The governor of Colorado, whose attorney general was among that group, subsequently said he didn’t think his state should have taken that position.
Also in December, Smart Approaches to Marijuana (SAM) and 21 other prohibitionist groups filed a brief urging justices to uphold the constitutionality of the federal gun ban for people who use cannabis—which they claim is associated with violence and psychosis.
On the other side of the debate, civil rights groups—including the American Civil Liberties Union (ACLU), whose attorneys are among those representing Hemani—and gun organizations such as the National Rifle Association (NRA) have argued that the current policy represents a misguided categorical infringement of Second Amendment rights for a population that uses a substance that’s been legalized in a majority of states and is now being partially federally reclassified.
Meanwhile, the Biden administration was evidently concerned about potential legal liability in federal cases for people convicted of violating gun laws simply by being a cannabis consumer who possessed a firearm, documents obtained by Marijuana Moment show.
The previously unpublished 2024 guidance from former President Joe Biden’s Justice Department generally cautioned U.S. attorneys to use discretion in prosecuting federal cannabis cases, particularly for offenses that qualified people for pardons during his term. But one section seems especially relevant as the Supreme Court takes on a case challenging the constitutionality of the current federal gun statute.
In interviews with Marijuana Moment, several Republican senators shared their views on the federal ban on gun possession by people who use marijuana—with one saying that if alcohol drinkers can lawfully buy and use firearms, the same standard should apply to cannabis consumers.
Sauer, the solicitor general, sent the justices a letter in April arguing that the Trump administration’s move to federally reschedule marijuana should not impact their decision in the Hemani case.
Separately in April, Blanche had suggested that the Trump administration may soon stop aggressively defending 922(g)(3), the federal law that criminalizes gun possession by people who consume marijuana and other illegal drugs.
