Colorado Panel Hears Ballot Proposal To Let Marijuana Users Obtain Concealed Carry Permits

Backers of a proposed Colorado ballot initiative to allow marijuana users to obtain concealed carry permits for guns appeared at a Denver hearing on Tuesday to discuss comments and potential changes to the measure’s language ahead of submitting it to the secretary of state for review.

During the meeting, officials from the Legislative Council Staff and Office of Legislative Legal Services raised a small number of potential issues with the proposal as currently written, asking for clarification and walking through possible changes to the language.

The hearing is the latest hoop for organizers to jump through as they attempt to qualify the proposal to appear on Colorado’s 2024 state ballot. After adopting any changes they decide to make, the campaign will then submit the would-be initiative to the secretary of state and, eventually, begin attempting to gather the 124,238 valid voter signatures required to put the question before voters.

According to a memo from officials, the review is meant “to provide comments intended to aid proponents in determining the language of their proposal and to avail the public of knowledge of the contents of the proposal.”

The prospective ballot measure is backed by the organization Guns for Everyone, a Second Amendment advocacy group that currently offers free classes for people to get concealed carry permits.

“I think this is one of those things that most Coloradans are in favor of,” co-founder Edgar Antillon has said of the measure. “It’s a freedom that everybody should have access to.”

At Tuesday’s hearing, one issue raised by staff is that the measure, if passed, is currently set to take effect in December 2024. But because election results may not be certified by then, officials asked if backers would consider pushing back that date or making the proposal effective upon a proclamation by the governor after certifying election results.

Antillon and Guns for Everyone co-founder Isaac Chase indicated they were open to either option.

Another issue with the proposal, said Conrad Imel, of the Office of Legislative Services, is that, as currently written, it could be interpreted to remove the state’s reference to other federal restrictions on firearms, such as bans for people who are dishonorably discharged from the military or who are committed to a mental institution.

“I don’t think that’s the intent of this proposal at all,” replied Antillon, indicating that the campaign would strike the provision in question.

Staff also asked whether it was the intent of the proposal to remove the authority of local sheriffs in charge of issuing concealed carry permits to deny applications based on “a reasonable belief that documented previous behavior by the applicant makes it likely that the applicant will present a danger to the applicant’s self or others.”

Antillon said the goal wasn’t to prohibit sheriffs from exercising that discretion, calling it a “fine balance” between wanting people to have freedoms and protecting public safety.

While the organization does back broader access to firearms, he said, “we don’t want to tackle all of the issues at the same time.”

In addition to substantive comments, state officials also flagged some minor technical concerns—primarily formatting changes on the ballot proposal.

In its current form, the one-page measure says 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.” 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.

By removing Colorado’s reference to firearms prohibitions for marijuana users, the Guns for Everyone proposal would create a split between Colorado’s gun laws and federal law.

Guns for Everyone could not be reached for comment this week.

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.

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