On November 8th, voters approved recreational marijuana initiatives in California, Massachusetts, Maine, and Nevada, and medicinal marijuana initiatives in Florida, North Dakota, and Arkansas (Montanans voted to roll back already existing medical marijuana restrictions). 28 states and the District of Columbia have now passed laws legalizing the medicinal and/or recreational use of marijuana.   

Meanwhile, Americans set a record in each of the last 18 months for the number of National Instant Criminal Background Check System firearm background checks processed, which is the most accurate indicator of the number of firearm sales (because nearly all sales by federally licensed firearm dealers require a background check, as do many private sales). This year almost certainly will surpass 2015 as the year with the most firearm background checks ever. 

Thus, legal marijuana use and firearm ownership are likely both at all-time highs. However, since federal law (18 U.S.C. § 922(g)(3)) makes it a felony for an “unlawful user of … any controlled substance” to “possess … any firearm,” and since marijuana is classified as a Schedule I controlled substance, it is a felony for a user of marijuana to possess a firearm.  

On November 14, 2016, the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) announced changes to Form 4473 – the form that federal law requires any transferee to complete before acquiring a firearm from a licensed dealer. Question 11.e on Form 4473 asks the purchaser: “Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?” Among the changes, which will go into effect on January 16, 2017, is bold lettering warning potential transferees that “the use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medical or recreational purposes in the state where you reside.”

The change to Form 4473 does not represent a shift in ATF’s position: on September 21, 2011, ATF issued an Open Letter stating “any person who uses or is addicted to marijuana, regardless of whether his or her State has passed legislation authorizing marijuana use for medicinal purposes, is an unlawful user of or addicted to a controlled substance, and is prohibited by Federal law from possessing firearms or ammunition.” But the change to Form 4473 does illuminate the increasing complexity of the ban. And with over half the states now allowing some method of marijuana use, it is inevitable that some well-meaning citizens will feel unjustly restricted by a firearms ban based on activity that is legal under state law. Therefore, more legal challenges to § 922(g)(3) can be expected.  

So far, every Federal Circuit Court to address § 922(g)(3) agrees that it is constitutional. However, the cases provide little insight into whether there is any connection between marijuana use and gun violence.  

In U.S. v. Yancey (2010), the Seventh Circuit upheld § 922(g)(3), citing research connecting drug use in general with violent crime. But the connection between cocaine and violent crime, for example, reveals little about the connection between marijuana and violent crime.

In U.S. v. Seay (2010), the Eighth Circuit did not cite any empirical studies in reaching its holding. Instead, the court erroneously placed the burden on the challenger to prove that § 922(g)(3) is unconstitutional (the burden is always on the government under heightened scrutiny, and heightened scrutiny always applies to Second Amendment challenges). The court also declared § 922(g)(3) to be a longstanding regulation like those declared “presumptively lawful” by the Supreme Court in D.C. v. Heller (2008), but the court elided that Congress only first enacted the precursor to § 922(g)(3) in 1968, and § 922(g)(3) itself in 1986.     

In U.S. v. Dugan (2011), the Ninth Circuit reasoned that because the Supreme Court deemed “longstanding prohibitions” on felons and the mentally ill “presumptively lawful,” a ban on habitual drug users must be lawful because “[h]abitual drug users, like career criminals and the mentally ill, more likely will have difficulty exercising self-control, particularly when they are under the influence of controlled substances.” But the court ignored the fact that the ban applies to all users, not just habitual ones; the court did not require the government to prove that the restriction was longstanding; the court failed to differentiate between marijuana users and users of other drugs; and the court did not require the government to actually demonstrate that drug users “more likely will have difficulty exercising self-control,” but instead relied on the judges’ personal intuitions.

In U.S. v. Carter (2014), the court upheld § 922(g)(3) based on studies regarding drug use in general (including cocaine, marijuana, hallucinogens, sedatives, and heroin) and “common sense.”  

The case most relevant to the millions of Americans who live in states that have legalized marijuana is Wilson v. Lynch (2016), in which the Ninth Circuit upheld the constitutionality of § 922(d)(3) as it applies to medical marijuana cardholders. (Similar to § 922(g)(3), § 922(d)(3) makes it unlawful to sell a firearm to anyone who is “an unlawful user of or addicted to a controlled substance.”) 

The court upheld the law based on the dubious surveys and studies from the Carter and Yancey cases, but the studies and surveys were not even provided to the court. In fact, the Ninth Circuit had “no occasion to evaluate the reliability of the studies and surveys, and instead accept[ed] them as probative,” because Wilson did not sufficiently challenge them. (In her defense, they were not even provided to the court.) 

The court also found persuasion in “Congress’s reasonable conclusion that the use of such drugs [including marijuana] raises the risk of irrational or unpredictable behavior with which gun use should not be associated.” But judicial deference to legislative determinations is appropriate for modest restrictions, not complete prohibitions. Further, the Supreme Court has made clear that mere “anecdote and supposition” is insufficient to justify a law. If Congress’s conclusion is in fact reasonable – and perhaps it is – the government should have to prove it.    

It will be interesting to see whether courts approach the firearms ban on marijuana users differently in states that have legalized it. Restrictions on the right to keep and bear arms are always easier to justify when they apply to criminals. And so far, courts have found it easiest to connect marijuana users to violence by grouping marijuana with other illegal drugs, and then connecting users of those other illegal drugs to violence. If the users are not considered criminals, and marijuana is not considered an illegal drug, the government will have more difficulty defending the ban.

Whatever approach future courts take, they should require the government to satisfy its burden of proving a sufficient fit between marijuana use and violence. There may be a myriad of reasons why marijuana users should be prohibited from possessing firearms; in future cases the government should be compelled to demonstrate what those reasons are. To this point, courts have allowed the government to abdicate that duty. It is insufficient to deprive persons of a constitutional right based on the intuition that they cannot be trusted with firearms—this contradicts Supreme Court instruction and treats the Second Amendment as a second-class right. If the government wants to restrict anyone’s right to keep and bear arms, the courts must hold the government to its duty of proving that the restriction is justified.