Cannabis Law and Gun Rights: News from SCOTUS

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Last week, the US Supreme Court decided its most recent Second Amendment case, United States v. Rahimi. Earlier this month, SCOTUS decided Garland v. Cargill, which could also spell changes for the cannabis industry later down the road. I wrote about the Rahimi case in earlier posts, as the outcome of the case could have affected gun rights for cannabis users. Today, I want to break down some key things about the Rahimi and Cargill decisions and what they mean for the future of gun rights for cannabis users. If you’re not familiar with the issues or my writing on them, I suggest you first read some of these posts:

What is the deal with cannabis users and gun rights?

Federal law defines cannabis users as “prohibited persons” who cannot own or possess guns, regardless of the Second Amendment. In 2022, the US Supreme Court decided New York State Rifle & Pistol Association, Inc. v. Bruen, creating a new test to evaluate whether a law restricting gun rights is constitutional. Since then, a number of federal courts have held that federal restrictions on gun rights for cannabis users are unconstitutional. One of those cases was appealed to the Supreme Court earlier this year.

What happened in the Rahimi case?

In the Rahimi case, different provisions of the same federal law were challenged. Specifically, the issue was whether a person subject to a domestic violence restraining order (DVRO) could be deemed a “prohibited person.” A federal appellate court last year held that the DVRO prohibition was unconstitutional, but in an 8-1 decision, the Supreme Court disagreed. As a result, persons subject to DVROs may not own firearms.

Without getting too far into the weeds, SCOTUS did what Bruen required it to do: examined historical laws regulating firearm possession and determined that there is a history of laws justifying restriction of gun ownership by persons adjudged pose a threat of violence to others.

Is Rahimi relevant to cannabis users?

Yes and no. To start, Rahimi does not mention cannabis use at all, as it is narrowly focused on a different federal restriction on gun possession by persons subject to DVROs. Additionally, Rahimi does not backtrack from the Bruen decision, which is the same SCOTUS decision that has allowed numerous federal courts to find the federal cannabis law restrictions unlawful.

Turning back to the lower court decisions that have addressed cannabis, the federal government has consistently argued (generally unsuccessfully) that federal gun restrictions are justified because cannabis users pose some kind of unique risk or threat. In fact, in its brief in opposition to SCOTUS granting review to the cannabis run rights case mentioned above, the federal government wrote “armed drug users pose a grave danger to themselves and to society.”

I can imagine that attorneys for the federal government will argue that Rahimi‘s rationale supports federal restrictions on cannabis users’ Second Amendment rights. But I think Rahimi is very distinct from the present situation as the restriction with respect to cannabis users is so much more broad than the DVRO restriction.

The federal law that restricts cannabis users’ Second Amendment rights has no requirement that a person be found to be a danger to themselves or others. Indeed it applies whether or not they are a even intoxicated at or around the time of a gun purchase or possession. This is vastly more broad than the DVRO restriction, which applies to someone is subject to a court order that:

was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;
restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
1. includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or
2. by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury . . . .

As you can see, this is a far, far more exacting standard than is applied to drug users, who are categorically denied Second Amendment rights.

With that in mind, and given the total lack of historical prohibition on cannabis users owning guns, it’s pretty easy to see how courts would have an easy job dismissing claims that cannabis users are so dangerous that the government is justified taking away their constitutional rights.

My prediction on a SCOTUS cannabis/gun rights decision

If SCOTUS hears a case challenging federal restrictions on gun rights for cannabis users, I predict that the law is struck down, something I’ve predicted in basically every post I’ve made on the subject since Bruen. However, in light of a different SCOTUS gun case, I think that language in the decision could set up later battles between the federal government and cannabis users.

Now let’s talk about Cargill. In that case, SCOTUS held that ATF regulations that prohibited bump stocks were unconstitutional. ATF had issued rules prohibiting bump stocks on the grounds that they constitute “machineguns” under the federal law that prohibits machine guns. The Court concluded that bump stocks are not “machineguns” within the meaning of the statute, and so ATF had exceeded its authority in issuing the rule.

In Cargill, Justice Samuel Alito issued a concurring opinion in which he agreed that bump stocks do not constitute “machineguns” but noted that:

There is a simple remedy for the disparate treatment of bump stocks and machineguns. Congress can amend the law—and perhaps would have done so already if ATF had stuck with its earlier interpretation. Now that the situation is clear, Congress can act.

In other words, Justice Alito signaled that Congress could remedy the situation by prohibiting bump stocks via legislation, which would allow ATF to prohibit them in the future.

Why is this relevant to cannabis? While it seems likely that SCOTUS would strike down federal gun rights restrictions for cannabis users, it seems equally likely that the Court could indicate that restrictions that were narrowly tailored to prevent cannabis users from possessing guns while intoxicated could be constitutional.

Depending on who is President and the composition of Congress, its easy to see how federal legislation could be enacted that would prohibit intoxicating cannabis users from using or possessing guns. But as with anything else, it’s easy to see how this could lead to future challenges. What does it mean to be “intoxicated,” for example?

Conclusion

SCOTUS’s recent gun rights decisions don’t change a whole lot for cannabis users, but they do reveal a few key things that could change the game dramatically in the coming years. For more updates, stay tuned to the Canna Law Blog.

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Griffen Thorne

Griffen is an attorney in Harris Sliwoski’s Los Angeles office, where he focuses his practice on corporate, transactional, intellectual property, data security, regulatory, and litigation matters across a wide variety of domestic and international industries.