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The deepening Hunter Biden scandal has proven to be this administration’s biggest embarrassment, but it also might prove to be a key moment in the reworking of a policy that keeps weed users from buying guns.
President Joe Biden’s son, Hunter, is facing federal charges for lying about his drug use on a Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) firearm transaction record. The case involves a 2018 handgun purchase made during a period when Hunter Biden was using crack-cocaine, by his own admission.
His attorneys are calling for the case to be dismissed, claiming that a prior plea deal should render him immune to the charges. But they are also arguing that the ATF’s drug rule is imposing on legal cannabis users’ right to bear arms, and enforcing the statute would criminalize millions of law-abiding citizens. Hunter Biden’s legal team has estimated that at least 16 million gun owners across the U.S. have broken the ATF purchasing form rule.
According to federal law, illegal drug users are not allowed to purchase firearms. When buying one, consumers are required to answer a list of yes or no questions—one of which is “Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?”
For legal cannabis users, the answer to this question would appear to be, “No,” since using weed in a state that has legalized it is “lawful use.”
However, the federal government does not see it that way. Following that question, the ATF added a warning: “The use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medicinal or recreational purposes in the state where you reside.”
The warning was added once it was realized people were understandably answering the question incorrectly in legal cannabis states. Lying on the form is a violation of federal law and is considered a felony.
In May, the ATF, which is a division of the Department of Justice (DOJ), clarified that “an individual who is a current user of marijuana is still federally defined as an “unlawful user” of a controlled substance and therefore is prohibited from shipping, transporting, receiving, or possessing firearms or ammunition.”
That means the rules also apply to gun owners who bought their guns before they started using marijuana. In a cannabis-positive state like New Mexico, where roughly half the population owns guns, a lot of lawful citizens have unwittingly become potential felons.
Advocates have been fighting the DOJ over this rule for months now. Last year, a U.S. district judge dismissed a lawsuit filed against the agency by then-Florida Agriculture Commissioner Nikki Fried, claiming that the agency was violating the Second Amendment.
Fried, a Democrat who favors strict gun laws, said the lawsuit wasn’t about gun control.
“I’m suing the Biden Administration because people’s rights are being limited,” she posted on X last year. “Medical marijuana is legal. Guns are legal. This is about people’s rights and their freedoms to responsibly have both.”
Fried’s legal team argued that federal laws forbidding the use of funds for prosecuting legal medical cannabis businesses was an indication that medical cannabis is considered “lawful conduct,” but the judge rejected the argument. Recently, the suit (sans Fried) was brought before the Eleventh U.S. Circuit Court of Appeals.
Another case involving the rule was brought before the Fifth U.S. Circuit Court of Appeals in August. Police discovered joints and firearms in a Mississippi man’s car during a traffic stop. The judges ruled that the DOJ had violated the man’s Second Amendment rights.
The judges of the Third U.S. Circuit Court of Appeals are facing a similar case in which a man was convicted of owning a firearm while also being a marijuana user. His lawyers are also arguing that the ban is unconstitutional.
In all of these cases, the DOJ has argued that cannabis users are criminals by definition, dangerous, incapable of making rational decisions, mentally-ill and unlikely to take proper care of their guns. It goes without saying that advocacy groups have taken offense at these characterizations.
A recently unearthed memo from 2019, released by the FBI’s Criminal Justice Information Services (CJIS) Division, has revealed that different departments in the DOJ itself don’t agree on the rule’s interpretation.
In the memo, the FBI clarifies that it doesn’t consider possession or production of state-legal medical marijuana to be disqualifying as long as the applicant doesn’t use marijuana.
It also notes that the ATF has defined “present time” as within the last 12 months, but the FBI defines it differently: “Such use is not limited to the use of drugs on a particular day, or within a matter of days or weeks before, but rather that the unlawful use has occurred recently enough to indicate the individual is actively engaged in such conduct. An inference of current use or possession may be drawn from evidence of a recent use or possession of a controlled substance or a pattern of use or possession that reasonably covers the present time.”
With opposition coming from every direction, the DOJ has been staying on its toes. But with the national attention being garnered by the Hunter Biden case and the presumption that the White House will be unwilling to allow the president’s son to be martyred for a less-than-popular policy, it seems like the DOJ is facing an uphill battle.
If the Hunter Biden case is dismissed on the grounds that the ATF has stifled his Second Amendment rights, then it’s going to become much more difficult for the DOJ to continue defending its stance.