A proposed ballot measure in Colorado would remove marijuana use as a disqualification for concealed carry permits in the state, potentially allowing people who use the drug to carry concealed firearms in public.
The measure, backed by the advocacy group Guns for Everyone, is set for a public hearing on Tuesday morning before the state’s Legislative Council Staff (LCS). After that meeting and any subsequent revisions to the proposal’s text, the campaign would need to file the would-be initiative with the secretary of state before activists could begin gathering the required 124,238 valid voter signatures required to qualify for the 2024 ballot.
Guns for Everyone co-founder Edgar Antillon said he’s confident the campaign will find broad support among the state’s voters.
“I think this is one of those things that most Coloradans are in favor of,” he told ABC affiliate Denver 7. “It’s a freedom that everybody should have access to.”
The Second Amendment advocacy group, which offers free concealed carry classes to people in the state and typically opposes gun control measures, sees the issue as a matter of both freedom and fairness.
“It’s one of those silly things that’s been going on for a while,” Antillon said. “We legalize marijuana, but we don’t give them the ability to defend themselves. Alcohol users get to defend themselves. Why not marijuana users?”
The change would create a split between Colorado’s gun laws and federal law by removing a reference to concealed carry permit applicants being denied if they’re ineligible to possess a gun under federal law. It would also add an explicit exception around marijuana use to a section prohibiting concealed carry permits for unlawful users of controlled substances.
Under the proposal, a sheriff “shall not use a permit applicant’s lawful use of marijuana [under state law] as a basis for denying the applicant a permit,” says the one-page document. Further it adds that whether an applicant’s marijuana use is unlawful “shall be determined as provided in state law” rather than federal law, as is the current practice.
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Under federal law, being an “unlawful user” of a controlled substance, including marijuana, means a person cannot legally buy or possess a gun.
Enforcement of that rule has been inconsistent, however. Attorneys for President Joe Biden’s son Hunter Biden, for example, who’s been charged by the Department of Justice (DOJ) with illegally owning a firearm while a user of illegal drugs, have argued that millions of marijuana users in legal states already own guns.
The younger Biden’s legal team has alleged that that even the prosecutor on the case has acknowledged that “an ordinary citizen would not be prosecuted for this offense is borne out by DOJ’s policy and statistical evidence.”
While people who use cannabis are barred from owning firearms under the law, a little-notice FBI memo from 2019 that recently surfaced shows that the federal government generally does not consider it a violation of the law for medical cannabis caregivers and growers to have guns.
The statute behind the prohibition has been challenged in a number of federal courts in recent years, with more than one judicial body determining that the restriction is unconstitutional. DOJ has steadfastly defended the ban, however, contending that medical marijuana patients and everyday consumers pose unique dangers to society that justify withholding Second Amendment rights.
Last month, for example, the Justice Department told the U.S. Court of Appeals for the Third Circuit that historical precedent “comfortably” supports the restriction. Cannabis consumers with guns pose a unique danger to society, the Biden administration claimed, in part because they’re “unlikely” to store their weapon properly.
The federal government has repeatedly claimed that those analogues provide clear support for limiting gun rights for cannabis users. But several federal courts have separately deemed the marijuana-related ban unconstitutional, leading DOJ to appeal in several ongoing cases.
The Justice Department asserted similar points during oral arguments in a separate but related case before the U.S. Court of Appeals for the Eleventh Circuit in October. That case focuses on the Second Amendment rights of medical cannabis patients in Florida.
Attorneys in both cases have also touched on a U.S. Court of Appeals for the Fifth Circuit ruling from August, Daniels v. United States, that found the ban preventing people who use marijuana from possessing firearms is unconstitutional, even if they consume cannabis for non-medical reasons.
DOJ had already advised the Eleventh Circuit court that it felt the ruling was “incorrectly decided,” and the department’s attorney reiterated that it’s the government’s belief that “there are some reasons to be uncertain about the foundations” of the appeals court decision.
The U.S. District Court for the Western District of Oklahoma also ruled in February that the ban prohibiting people who use marijuana from possessing firearms is unconstitutional, with the judge stating that the federal government’s justification for upholding the law is “concerning.”
In U.S. District Court for the Western District of Texas, a judge ruled in April that banning people who use marijuana from possessing firearms is unconstitutional—and it said the same legal principle also applies to the sale and transfer of guns.
In August, meanwhile, ATF sent a letter to Arkansas officials saying that the state’s recently enacted law permitting medical cannabis patients to obtain concealed carry gun licenses “creates an unacceptable risk,” and could jeopardize the state’s federally approved alternative firearm licensing policy.
Shortly after Minnesota’s governor signed a legalization bill into law in May, the agency issued a reminder emphasizing that people who use cannabis are barred from possessing and purchases guns and ammunition “until” federal prohibition ends.
In 2020, ATF issued an advisory specifically targeting Michigan that requires gun sellers to conduct federal background checks on all unlicensed gun buyers because it said the state’s cannabis laws had enabled “habitual marijuana users” and other disqualified individuals to obtain firearms illegally.
Attorneys for Hunter Biden, who has been indicted on a charge of buying a gun in 2018 at a time when he’s disclosed that he was an active user of crack cocaine, have previously cited the court ruling on the unconstitutionality of the federal ban, arguing that it applies to their client’s case as well.
Republican congressional lawmakers have filed two bills so far this session that focus on gun and marijuana policy.
Rep. Brian Mast (R-FL), co-chair of the Congressional Cannabis Caucus, filed legislation in May to protect the Second Amendment rights of people who use marijuana in legal states, allowing them to purchase and possess firearms that they’re currently prohibited from having under federal law.
Senate Majority Leader Chuck Schumer (D-NY) has committed to attaching that legislation to a bipartisan marijuana banking bill that advanced out of committee last month and is pending floor action.
Meanwhile, Mast is also cosponsoring a separate bill from Rep. Alex Mooney (R-WV) this session that would more narrowly allow medical cannabis patients to purchase and possess firearms.
One place where the matter is particularly relevant is Jersey City, New Jersey, where Mayor Steven M. Fulop (D) is suing over a state policy that allows police officers to use marijuana while off duty.
That challenge, however, has sparked pushback from two police officers, who’ve since sued Jersey City over what they say is a politically motivated move by Fulop in service of a future gubernatorial campaign.
Medical Marijuana Growers And Caregivers Can Own Guns, But Patients Can’t, FBI Says In Little-Noticed Memo
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