Organizers trying to protect firearms rights for marijuana consumers in Colorado notched a procedural victory on Wednesday as the state’s Initiative Title Setting Review Board approved the language of a prospective ballot initiative that could go before voters in November.
Though the campaign, which is backed by the Second Amendment advocacy group Guns for Everyone, will still have to get official petitions formatted and approved, co-founder Edgar Antillon told Marijuana Moment that the next big hurdle is signature gathering.
“There is basically still the submitting on how we’re gonna do the signature forms, and that has to get approved,” he said in a phone call, “but that’s the least of our worries at this point.”
If it were to become law, the proposed initiative would remove a state restriction prohibiting law enforcement from granting concealed handgun permits to people who use cannabis. Specifically, it says that sheriffs “shall not use a permit applicant’s lawful use of marijuana pursuant to [the state constitution] as a basis for denying the applicant a permit.”
Colorado legalized adult-use cannabis through a ballot initiative in 2012, though cannabis remains prohibited at the federal level. And under federal law, being an “unlawful user” of a controlled substance, including marijuana, means a person cannot legally buy or possess a gun.
While the ballot proposal would not affect that federal law, it would remove a separate state barrier to around the issuance of concealed handgun permits. It specifies that “unlawful user of or addicted to marijuana” should be determined “only as provided in state law and regulations.”
The campaign was prepared to begin gathering signatures to qualify the measure earlier this year, but the board dealt the effort a setback when it said in mid-January that a previous version of the proposal would violate the state’s single-subject rule for voter initiatives.
The following month, organizers submitted new language, which was reviewed by the initiative title board on Wednesday.
“Basically what we ended up doing was specifying and being redundant with the ‘lawful user of marijuana’ verbiage,” Antillon explained of the latest changes to avoid the board’s concerns. “Previously in some areas, according to the board—we disagree with it even right now, but according to the board—it was too broad and could potentially allow other substance users” to receive concealed carry permits.
“We simply added more specific language in other areas of the initiative,” he said.
Despite the nearly two-month delay, the campaign is still targeting this November’s ballot.
As for how it plans to gather its goal of 150,000 signatures from registered voters—more than the necessary number required to put the measure on November’s ballot—Antillon said Guns for Everyone is planning to find supporters at existing cannabis- and firearms-related events.
“It’s not complicated: It’s go to 4/20 events,” he said. “We’re kind of lucky in that we have one of the largest 4/20 events here in the state of anywhere in the nation.”
In addition to a festival in Denver, Antillon said a Red Rocks event “also provides an opportunity for us”—as do monthly gun shows. “It’s pretty simple: getting people who consume marijuana, enjoy guns and want to be able to defend themselves. We will be able to find them at all of these venues.”
In a separate interview with Marijuana Moment late last year, as the campaign was working to qualify the earlier version of its proposal, Antillon said support for the reform seems to have grown in recent years among both gun-rights advocates and the cannabis community.
“I think this is one of those things that most Coloradans are in favor of,” Antillon said. “It’s a freedom that everybody should have access to.”
At the federal level, enforcement of the rule against gun purchases or ownership by marijuana users has been inconsistent. 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 even the prosecutor on the case has acknowledged that “an ordinary citizen would not be prosecuted for this offense,” which they argued “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 year, 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) also committed to attaching that legislation to a bipartisan marijuana banking bill.
Meanwhile, Mast also cosponsored a separate bill from Rep. Alex Mooney (R-WV) 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. A police union has also asked the judge in the city’s case to throw out the lawsuit, calling it “pure hogwash.”
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