The Justice Department may stop defending and pursuing prosecutions under the federal law barring marijuana users from owning guns, Acting Attorney General Todd Blanche said Wednesday, a potential reversal of a position both the Trump and Biden administrations have held in court.
Blanche and Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) Director Robert Cekada announced 34 new notices of final and proposed rulemaking to reduce burdens on gun owners and businesses. None directly amend 922(g)(3), the statute barring cannabis and other drug users from owning or buying firearms. Asked at a briefing whether DOJ is reconsidering its defense of that law, Blanche confirmed it is, with the review proceeding case by case.
"We just recently got out of a case two weeks ago that had been pending for a long time," Blanche said. "We've recently argued some cases in front of the Supreme Court. We've had some cases in the court of appeals, and this is something that we're looking carefully at case by case to make sure that we are doing the right thing—consistent with the Constitution, consistent with the Second Amendment, consistent with this administration's priorities."
Last month the administration argued before the U.S. Supreme Court that 922(g)(3) is constitutional, and last week Solicitor General D. John Sauer sent the justices a letter saying the federal rescheduling of marijuana should not affect the pending case, U.S. vs. Hemani.
Among the 34 rulemaking actions, ATF proposed comprehensive updates to Form 4473 — the Firearms Transaction Record required for all commercial gun sales — which currently asks buyers: "Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?" The Second Amendment Foundation, a gun rights group, said "of particular interest to us will be the wording of the cannabis-related question" under the revised form, pending the Supreme Court's ruling in Hemani.
Earlier this year, ATF issued an interim final rule — open for public comment through June 30 — that would narrow the definition of "unlawful user of or addicted to any controlled substance," a standard currently applied to deny gun rights to anyone who used an illegal substance even once in the prior year.
"Our enforcement focus from here on out is on willful violators and criminal actors, not inadvertent compliance issues by responsible owners and licensees," Cekada said.
