Tuesday, August 29, 2023
"A Second Amendment Angle of Cannabis Prohibition: Are State-Compliant Marijuana Users Being Denied the Right to Keep and Bear Arms?"
I continue to be excited to post some the latest papers from the on-going series of student papers supported by the Drug Enforcement and Policy Center in order to highlight great work by OSU law students and recent graduates on many important and cutting-edge topics. The title of this post is the title of this paper authored by Katie Schaefer, who is in her final year as a student at The Ohio State University Moritz College of Law. Here is its abstract:
Although individual states have not necessarily legislated that possessing a gun is unlawful for state compliant marijuana users, cannabis’s federal illegality produces this result. The process for obtaining a gun – regardless of what state the individual resides in – requires the individual to fill out the Federal Bureau of Alcohol, Tobacco, and Firearms’ Form 4473. Form 4473 question 21g, as mandated by 18 U.S.C. § 922(g)(3), disqualifies cannabis users from purchasing a firearm.
Consequently, individuals who are fully in compliance with the marijuana laws in their home state are being stripped of their Second Amendment right, regardless of if the plant is being used for medicinal or adult use purposes. Therefore, marijuana users who wish to possess a gun have three options: stop using marijuana entirely, stop using state compliant marijuana and instead obtain it from an illicit source, or lie. Although ATF agents and prosecutors report that due to limited resources, they are not inclined to prioritize the nonviolent crime of lying on a form over more serious charges, lying on the form and obtaining a gun while being a cannabis user remains a federal felony offense.
In the wake of Bruen, litigation on this matter has so far been leaning in favor of gun rights activists. But there remain many unanswered questions in this area. The implications of either a legitimization of state-legal marijuana use on the federal level (while the plant remains on schedule I), or of an acknowledgement that the gun control/background check process can be changed, could be massive.