Pot users should not lose their gun rights

The Biden administration says cannabis consumers should not be treated as criminals, but continues to defend a federal policy that punishes them by taking away their Second Amendment rights.

A person smokes cannabis outside a dispensary in New York City. Pot users still have Second Amendment rights, Jacob Sullum writes.

A person smokes cannabis outside a dispensary in New York City. The Biden administration is keeping pot users from exercising their Second Amendment rights, Jacob Sullum writes.

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After Minnesota became the 23rd state to legalize recreational marijuana last week, the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) issued a familiar warning. Minnesotans who might be inclined to consume cannabis supplied by state-licensed stores, the ATF office in St. Paul said, should recognize that doing so means sacrificing the constitutional right to armed self-defense.

That puzzling predicament, the result of restrictions imposed by the Gun Control Act of 1968, is untenable in a country where most states allow medical or recreational marijuana use and two-thirds of adults support full legalization. Yet even though President Joe Biden says cannabis consumers should not be treated as criminals, his administration is desperately defending a policy that punishes them by taking away their Second Amendment rights.

Marijuana users who try to exercise those rights are subject to severe federal penalties, including up to 15 years in prison for buying or possessing a firearm. If they deny marijuana use on the ATF form required for gun purchases from federally licensed dealers, that is another felony, punishable by up to 10 years in prison.

A law that Congress approved last year added yet another penalty: up to 15 years for “trafficking in firearms.” Counterintuitively, Congress defined that crime broadly enough to cover any “unlawful user” of a “controlled substance,” including marijuana, who obtains a firearm.

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Can this situation be reconciled with a constitutional provision that guarantees “the right of the people” to “keep and bear arms”? To pass muster under the Second Amendment, the Supreme Court says, a gun control law must be “consistent with this Nation’s historical tradition of firearm regulation.”

In trying to meet that test, the Biden administration has cited 18th and 19th century laws that prohibited people from publicly carrying or firing guns while intoxicated. But that analogy is inapt because the restriction that the government is defending is much broader.

The law that the ATF highlighted last week applies to cannabis consumers even when they are sober, and it prohibits private as well as public gun possession. A truly analogous law would impose a blanket ban on gun ownership by drinkers, a policy that would be plainly inconsistent with the Second Amendment.

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The early laws that the Biden administration cites, a federal judge in Oklahoma observed last February, “took a scalpel to the right of armed self-defense” by “narrowly carving out exceptions but leaving most of the right in place.” By contrast, U.S. District Judge Patrick Wyrick wrote, the current federal rule “takes a sledgehammer to the right,” imposing “the most severe burden possible: a total prohibition on possessing any firearm, in any place, for any use, in any circumstance — regardless of whether the person is actually intoxicated or under the influence of a controlled substance.”

Two months later, a federal judge in Texas agreed with Wyrick that the government had failed to meet its constitutional burden. The early laws targeting drunken gun handling, U.S. District Judge Kathleen Cardone said, were similar to contemporary laws against driving under the influence, which likewise aim to prevent people from “using dangerous equipment while intoxication might impair their abilities and judgment.”

If states instead sought to “prevent individuals from possessing cars at all if they regularly drink alcohol on weekends,” Cardone noted, no one would think that was analogous to current policy. Unlike car ownership, of course, gun ownership is explicitly protected by the Constitution. Cardone joined Wyrick in rejecting the government’s claim that the “widespread practice” of unwinding with cannabis rather than alcohol “can render an individual so dangerous or untrustworthy that they must be stripped of their Second Amendment rights.”

Federal judges who have been more receptive to the Biden administration’s argument failed to seriously consider whether its historical examples are “relevantly similar” to current federal law. Those courts instead deferred to dubious policy judgments that make a fundamental right subject to legislative whims — precisely the situation that constitutional guarantees are meant to avoid.

Jacob Sullum is a senior editor at Reason magazine.

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