Tag: 2nd amendment

Medical Marijuana Growers And Caregivers Can Own Guns, But Patients Can’t, FBI Says In Little-Noticed Memo

Being a state-registered medical marijuana caregiver or grower doesn’t automatically disqualify a person from owning a firearm, the FBI says. But merely possessing a medical cannabis card as a patient does render a person ineligible.

Amid the growing tension between federal gun policies and the ever-expanding state marijuana legalization movement, a little-noticed FBI memo from 2019 offers a lens into the byzantine legal interpretations surrounding cannabis and firearms—an issue that’s recently been raised in multiple federal court cases.

The government has several different ways it assesses firearm eligibility in the context of cannabis, according to the memo from FBI’s Criminal Justice Information Services (CJIS) Division, which was briefly noted in a report from The New York Times last week. In some cases, that involves affirmatively restricting gun rights based on activities or documentation that doesn’t necessarily mean a person is an active marijuana consumer.

At their core, the federal rules say that being an “unlawful user” of a controlled substance, including marijuana, means a person cannot buy or possess a gun. Would-be gun purchasers are required to disclose such use as part of a Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) form before making a purchase, and lying on that form is a felony offense.

The statute behind that prohibition has been challenged in a number of federal courts over the past couple of years, with more than one judicial body determining that the restriction is unconstitutional. The Department of Justice (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.

But the federal government’s interpretation of the policy is apparently more nuanced, as evidenced by the memo from CJIS’s National Instant Criminal Background Check System Section that’s gone largely unscrutinized since being published more than four years ago.

A person’s firearm eligibility is partly determined by whether their use of a controlled substance is deemed “current.” FBI says that’s “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.”

“ATF has determined that the present time is represented by the time frame of within the past 12 months,” the memo says.

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Judge Rules Federal Ban on Handgun Sales to 18- to 20-Year-Olds Unconstitutional

A recent ruling by Judge Thomas Kleeh, appointed by former President Donald Trump and chief judge of the United States District Court for the Northern District of West Virginia, has overturned the Biden administration’s attempt to prevent adults aged 18 to 20 from purchasing handguns.

This decision emerged from the case of Steven Robert Brown and Benjamin Weekley, who were prohibited from buying guns under the administration’s directive.

The ruling said that “Plaintiffs’ conduct — the purchase of handguns — ‘fall[s] [within] the Second Amendment’s ‘unqualified command’ and the challenged statutes and regulations are not ‘consistent with the Nation’s historic tradition of firearm regulation,’” and that a rule barring Brown and Weekley from buying handguns was “facially unconstitutional and as applied to Plaintiffs.”

The decision relied heavily on the standard set by the 2022 U.S. Supreme Court decision in New York State Rifle and Pistol Association Inc. vs. Bruen that required any gun control law to have its roots in the historical tradition of firearms regulation.

Kleeh noted that under Bruen, ‘‘To justify its regulation, the government may not simply posit that the regulation promotes an important interest.” He added that ‘‘the government must demonstrate that the regulation is consistent with the Nation’s historic tradition of firearm regulation. Only if a firearm regulation is consistent with the Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’”

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California Defies SCOTUS by Imposing Myriad New Restrictions on Public Gun Possession

A California law that is scheduled to take effect on January 1 will impose a host of new restrictions on public possession of firearms. That may seem counterintuitive, since Senate Bill 2 is the state legislature’s response to the U.S. Supreme Court’s June 2022 ruling in New York State Rifle & Pistol Association v. Bruen, which upheld the Second Amendment right to carry guns for self-defense outside the home. But California, like several other states with discretionary carry-permit policies that had to be revised because of Bruen, is attempting an end run around that decision by simultaneously making permits easier to obtain and much harder to use.

In Bruen, the Supreme Court said states may not require permit applicants to demonstrate “a special need for self-protection distinguishable from that of the general community.” Accordingly, S.B. 2, which Gov. Gavin Newsom signed into law on September 26, eliminates California’s “good cause” requirement, along with a similarly amorphous “good character” criterion (although it still disqualifies applicants deemed “reasonably likely” to pose a danger to themselves or others). By limiting the discretion of licensing authorities, S.B. 2 notes, those changes could have opened the door to “broadly allowing individuals to carry firearms in most public areas.” Deeming that outcome intolerable, legislators instead decreed that guns may not be carried in most public areas.

Copying the constitutionally dubious approach taken by states such as New York, New Jersey, Maryland, and Hawaii, S.B. 2 designates myriad locations as “sensitive places” where guns are not permitted. It also establishes a default rule that people may not bring guns into a business unless the owner “clearly and conspicuously posts a sign at the entrance of the building or on the premises indicating that licenseholders are permitted to carry firearms on the property.”

As a federal lawsuit challenging those rules notes, the law “turns the Bruen decision on its head, making nearly every public place in California a ‘sensitive place’ (in name only)” and “forbidding firearm carry even after someone has undertaken the lengthy and expensive process to be issued a concealed handgun license.” California’s gun-free zones  “include every park and playground, every hospital, all public transportation, any place that sells alcohol (which, in California, includes most gas stations and convenience and grocery stores), all land under the control of the Department of Parks and Recreation or the Department of Fish and Wildlife (with exceptions for hunting), libraries, churches, banks, and many more.” S.B. 2 “even transforms private businesses into ‘gun-free zones’ by default, imposing an unprecedented affirmative duty on private business owners to post signage to authorize people exercising an enumerated constitutional right to enter the property.”

As a result, says the complaint in May v. Bonta, “Californians who desire to exercise their enumerated right to carry are essentially limited to some streets and sidewalks (so long as those public places are not adjacent to certain other ‘sensitive’ places), plus a few businesses willing to post a ‘guns allowed’ sign at the risk of potentially losing other customers by doing so.” The law “creates a patchwork quilt of locations where Second Amendment rights may and may not be exercised, thus making exercise of the right so impractical and legally risky in practice that ordinary citizens will be deterred from even attempting to exercise their rights in the first place.”

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Laws Requiring Permission to Obtain Guns Look Vulnerable

According to a landmark 2022 Supreme Court decision, the Second Amendment constrains the requirements that states may impose on residents who want to carry guns in public for self-defense. It stands to reason that the same is true of the steps that people must take to acquire guns in the first place.

That is essentially what the U.S. Court of Appeals for the 4th Circuit concluded last week, when it ruled that Maryland’s handgun licensing system is inconsistent with the right to keep and bear arms. The case exemplifies a new front in constitutional challenges to gun control laws under the Second Amendment test that the Supreme Court established last year.

To pass that test, a law must be “consistent with this Nation’s historical tradition of firearm regulation.” But Maryland’s law, which requires would-be handgun owners to complete a process that can take up to 30 days, bears little resemblance to regulations enacted in the 18th or 19th century.

Maryland is one of 14 states that require background checks for all firearm purchases, whether or not the seller is a federally licensed dealer. Since 2013, Maryland has imposed an additional requirement on handgun buyers: They must first obtain a “handgun qualification license,” which entails completing at least four hours of firearm training and undergoing a seemingly redundant “investigation” aimed at screening out people who are legally disqualified from owning guns.

Maryland argued that its law fits a tradition of disarming “dangerous” individuals, such as people with felony records, illegal drug users, and people convicted of domestic violence misdemeanors. But even assuming those categories of “prohibited persons” are validated by long-standing practice, 4th Circuit Judge Julius Richardson said, Maryland’s statute goes further by “preemptively disarming every person until they can each prove that they are not dangerous,” which “burdens a far broader swath of people.”

Writing in dissent, Judge Barbara Milano Keenan highlighted the Supreme Court’s distinction between “may issue” laws like New York’s, which required carry-permit applicants to demonstrate “proper cause,” and “shall issue” laws, which make permits available to all applicants who meet “objective criteria.” Maryland’s licensing system for handgun buyers falls into the latter category, Keenan said, which suggests the Court would be inclined to uphold it.

While the Supreme Court did indicate that “shall issue” laws could be consistent with the Second Amendment, it also noted that “any permitting scheme can be put toward abusive ends.” It therefore did not rule out “constitutional challenges to shall-issue regimes where, for example, lengthy wait times in processing license applications or exorbitant fees deny ordinary citizens their right to public carry.”

Although it’s not clear what counts as an unacceptably “lengthy” time to wait for permission to obtain a firearm, the 4th Circuit majority thought a month was too long. If so, the laws of other states that license gun buyers could be vulnerable.

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Appeals Court Strikes Blow to Gun Owner Privacy Rights in Ruling Accommodating ‘Violence Researchers’

A California appeals court ruled Friday that the state may continue sharing the personal information of gun owners with “gun violence” researchers.

California’s Department of Justice had been permitted to share “identifying information of more than 4 million gun owners” collected by the state during the background check process for firearms purchases with “qualified research institutions,” ostensibly to aid in the study of gun-related accidents, suicides and violence.

The information sharing was authorized by new law, Assembly Bill 173, signed by Gov. Gavin Newsom in 2021, according to The Associated Press.

California’s DOJ was permitted to share “names, addresses, phone numbers, and any criminal records, among other things” under the new regulation.

The AP didn’t note how much of that information had already been shared with researchers, but apparently at least some sharing had occurred, since the outlet reported the state attorney general’s intention to “resume” the provision of it to unspecified researchers.

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The 4th Circuit Says Maryland’s Handgun Licensing Law Is Unconstitutional

Maryland is one of 14 states that require background checks for all firearm purchases, whether or not the seller is a federally licensed dealer. Since 2013, Maryland has imposed an additional requirement on handgun buyers: They must first obtain a “handgun qualification license,” which entails completing at least four hours of firearm training and undergoing a seemingly redundant “investigation” aimed at screening out people who are legally disqualified from owning guns. According to the U.S. Court of Appeals for the 4th Circuit, that process, which can take up to 30 days, violates the Second Amendment.

In a decision published on Tuesday, a divided 4th Circuit panel concluded that Maryland’s handgun ownership licensing system is not “consistent with this Nation’s historical tradition of firearm regulation”—the constitutional test that the U.S. Supreme Court established last year in New York State Rifle & Pistol Association v. Bruen. Writing for the majority in Maryland Shall Issue v. Moore, 4th Circuit Judge Julius Richardson notes that Bruen “effected a sea change in Second Amendment law,” making a variety of gun control laws newly vulnerable to constitutional challenges. Maryland’s handgun licensing law is the latest example.

The state argued that the law fits a tradition of disarming “dangerous” individuals, such as people with felony records, illegal drug users, and people convicted of domestic violence misdemeanors. “Maryland simply assumes that those federal prohibitions are justified by a historical ‘dangerousness’ exception,” Richardson writes. And because “the challenged law is ostensibly designed to prevent those same groups of people from acquiring handguns,” the state argued, “it also falls within the same ‘dangerousness’ exception.”

But even if the goal is the same, Richardson says, the “mechanism” embodied in the licensing law is “entirely different.” Maryland did not merely prohibit people from owning guns based on criteria that supposedly indicate they pose a threat to public safety. “Instead,” Richardson writes, “it prohibits all people from acquiring handguns until they can prove that they are not dangerous. So Maryland’s law burdens all people—even if only temporarily—rather than just a class of people whom the state has already deemed presumptively dangerous.”

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Federal Court Strikes Down Maryland’s Handgun License Law as Unconstitutional

The Biden administration that pushed efforts to limit citizen’s gun rights suffered another in a series of legal setbacks.

On Tuesday, a federal appeals court judge ruled that Maryland’s handgun license law violated the Second Amendment.

Democratic Maryland legislatures passed a law requiring potential handgun orders to first secure a “handgun qualification license.” The law required a background investigation and a waiting period of up to 30 days.

Critics of the law argued the criteria to be approved for a “license” was vague and arbitrary.

On Tuesday, the Fourth Circuit ruled the law was not “consistent with this Nation’s historical tradition of firearm regulation.”

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Prosecutors of 6-Year-Old Shooter’s Mother Claim Gun-Owning Pot Users Are ‘Inherently Dangerous’

On Wednesday, a federal judge sentenced Deja Taylor, a 26-year-old Virginia woman whose 6-year-old son used her pistol to shoot a teacher last January, to 21 months in prison for owning a gun while using marijuana. In June, Taylor pleaded guilty to violating 18 USC 922(g)(3), which makes it a felony, punishable by up to 15 years in prison, for an “unlawful user” of a “controlled substance” to possess a firearm. She also admitted that she falsely denied drug use on the form she filled out when she bought the pistol, a felony punishable by up to 10 years in prison.

“This case is not a marijuana case,” Assistant U.S. Attorney Lisa McKeel wrote in the government’s sentencing memorandum. “It is a case that underscores the inherently dangerous nature [of] and [the] circumstances that arise from the caustic cocktail of mixing consistent and prolonged controlled substance use with a lethal firearm.”

McKeel is partly right: Strictly speaking, this is a firearm case, not a marijuana case. Yet there would be no firearm case without federal marijuana prohibition. And while the evidence indicates that Taylor was neither a model gun owner nor a model cannabis consumer, her federal firearm offenses do not hinge on the details of her behavior. Survey data suggest that millions of Americans are gun-owning cannabis consumers, meaning they are guilty of the same felony that earned Taylor a prison sentence, even if they pose no danger to anyone. As a federal appeals court recently noted, that situation is hard to reconcile with “the right of the people to keep and bear arms.”

According to the National Survey on Drug Use and Health, over 60 million Americans used illegal drugs (mainly marijuana) in 2021. Based on surveys indicating that roughly one-third of American adults own guns, we can surmise that something like 20 million people violated Section 922(g)(3) that year. Yet on average, federal prosecutors file just 120 charges under that provision each year. In other words, only a minuscule percentage of the potential defendants will ever become actual defendants.

It is no mystery why Taylor ended up being part of that tiny minority. First, her marijuana use attracted official attention as a result of the investigation that followed her son’s January 6 assault on Abigail Zwerner, a teacher at Richneck Elementary School in Newport News, who underwent five surgeries to repair the damage that the bullet he fired did to her hand and lung. Second, that investigation also revealed a pattern of irresponsible conduct, which was not legally necessary to prosecute Taylor’s firearm offenses but surely played a role in the decision to pursue a federal case.

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He Lost His Gun Rights Because of a Misdemeanor DUI Conviction. That Was Unconstitutional, a Judge Says.

The federal ban on gun possession by people with certain kinds of criminal records is often described as applying to “felons,” but that shorthand is misleading. The provision, 18 USC 922(g)(1), actually covers anyone convicted of “a crime punishable by imprisonment for a term exceeding one year.” That is why Pennsylvania resident Edward A. Williams lost his right to own a gun after he was convicted of driving under the influence, a misdemeanor, in 2005. Had Williams defied Section 922(g)(1) by possessing a firearm, he would have been committing a federal felony punishable by up to 15 years in prison.

That consequence violated Williams’ Second Amendment rights, a federal judge ruled on Tuesday. U.S. District Judge John Milton Younge’s decision in Williams v. Garland tracks the logic of a June ruling by the U.S. Court of Appeals for the 3rd Circuit, which includes Pennsylvania. The latter case, Range v. Attorney General, involved a Pennsylvania man who likewise was convicted of a nonviolent misdemeanor: food stamp fraud. Both cases illustrate the breadth of this “prohibited person” category, which includes many Americans with no history of violence.

Back in 1995, Bryan Range pleaded guilty to fraudulently obtaining $2,458 in food stamps by understating his income. He returned the money, paid a $100 fine and $288 in court costs, and served three years of probation. But although he did not initially realize it, that Pennsylvania misdemeanor conviction also carried a lifelong penalty under Section 922(g)(1): permanent loss of his Second Amendment rights. Even though Range did not serve any time behind bars, his crime theoretically was punishable by up to five years in prison.

Applying the constitutional test that the Supreme Court established last year in New York State Rifle & Pistol Association v. Bruen, the 3rd Circuit concluded that disarming Range was not “consistent with this Nation’s historical tradition of firearm regulation.” Writing for the majority, Judge Thomas M. Hardiman noted that laws restricting gun rights based on criminal records were not enacted until relatively recently.

The first such federal law, the Federal Firearms Act of 1938, applied only to violent crimes such as murder, manslaughter, rape, kidnapping, robbery, and assault with a deadly weapon. In 1961, Congress expanded the ban to cover nonviolent crimes punishable by more than a year in prison. “We are confident that a law passed in 1961—some 170 years after the Second Amendment’s ratification and nearly a century after the Fourteenth Amendment’s ratification—falls well short of ‘longstanding’ for purposes of demarcating the scope of a constitutional right,” Hardiman wrote.

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