Under federal law, "unlawful" users of drugs are not allowed to possess firearms. But what exactly does that mean? Is someone who smoked a joint ten years ago forbidden from exercising their Second Amendment rights? What about someone who occasionally uses drugs, but is not addicted to them?
The Supreme Court will examine the constitutionality of Section 922(g)(3) in early March when it hears oral arguments in U.S. v. Hemani, but the Bureau of Alcohol, Tobacco, Firearms, and Explosives (and its parent agency the Department of Justice) are already taking a second look at the current interpretation of the statute, which Solicitor General D. John Sauer has argued applies only to "habitual" drug users who are currently engaged in unlawful drug use.
Since 1997, the ATF has interpreted 922(g)(3) to apply to "persons who use a controlled substance and have 'lost the power of self-control with reference to the use' of the substance, and (2) persons who are 'current user[s]' of a controlled substance 'in a manner other than as prescribed by a licensed physician.' The definition then clarified the temporal component by stating that 'use' of the controlled substance is not limited to a particular day or within a matter of days or week sbefore shipping, transporting, receiving, or possessing a firearm, but rather that 'the unlawful use has occurred recently enough to indicate that the individual is actively engaged in such conduct' and that the person can be an unlawful current user even if the substance is 'not being used at the precise time the person seeks to acquire a firearm or receives or possesses a firearm.'
The proposed rule notes that NICS has been denying transfers of firearms for those individuals with even a single admission of drug use in the prior 12 months by '"relying on the inferences from ATF’s current regulation." Instead, the proposed rule would "remove the inference examples of 'current use' to instead require evidence of a pattern of unlawful use," so that a single use wouldn't be enough to deem someone an unlawful user.
As a result, because of the impact the examples overall are having on persons’ ability to purchase firearms, ATF has determined that it is necessary to remove the examples in full, while clarifying that the prohibition in 18 U.S.C. 922(g)(3) requires that the records show a person is regularly using or possessing controlled substances, as described in the discussion above. This is an interim measure to address the harm to constitutional rights caused by erroneously denying a person a firearm while ATF further assesses whether new examples might be useful or feasible, given the variety of case-by-case fact patterns. ATF may reassess the definition of unlawful user in a separate notice of proposed rulemaking after the pending case United States v. Hemani concludes at the Supreme Court and considering any public comments in response to this IFR, or it may make amendments in a final rule based on this interim one. In the meantime, any erroneous denials based on the examples in the current definition will cease.
The proposed rule would read, in part, that “[a] person who regularly uses a controlled substance over an extended period of time continuing into the present, without a lawful prescription or in a manner substantially different from that prescribed by a licensed physician, is an unlawful user of a controlled substance.” It would also clarify that someone is not considered an unlawful user if "the person has ceased regularly unlawfully using the substance, or if the person’s unlawful use is isolated or sporadic or does not otherwise demonstrate a pattern of ongoing use. A person is also not an unlawful user if the person, while using a lawfully prescribed controlled substance, deviates slightly or immaterially from the instructions of the prescribing physician.”
I suppose that's an improvement over the current interpretation of statute, but to me it still fails to address the biggest issue with922(g)(3); the overwhelming number of states that have approved marijuana for medical use, and the 26 states that have approved it for recreational use as well.
Under this definition, someone who regularly eats a THC gummy to cope with the side effects of chemotherapy would still be banned from purchasing or possessing a gun, while someone who drops acid or gobbles down a handful of mushrooms every few months wouldn't face the same barrier to exercising their Second Amendment rights.
I understand that there's only so much that can be done by revising interpretations instead of changing the statute itself, and thankfully the Supreme Court still has the opportunity to address this issue in Hemani. I'd call the ATF's proposed rule a step in the right direction when it comes to respecting the right to keep and bear arms, but it may take an act of Congress to adequately address the conflict between state and federal law when it comes to marijuana use and our Second Amendment rights.
Editor’s Note: The radical left will stop at nothing to enact their radical gun control agenda and strip us of our Second Amendment rights.
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