State Cannabis Gun Right Laws Won’t Work

In the past few weeks, I’ve published a few posts (here and here) about recent federal cannabis gun rights cases. In those cases, the courts disagreed on whether the federal government can prohibit cannabis users from owning guns. On the other end of the spectrum, there are state-level efforts to protect gun rights for cannabis users. They aren’t going to work, and I’ll explain why below.

To set the stage a bit, current provisions of the federal Gun Control Act of 1968 deems cannabis users to be “prohibited persons” who may not legally own or possess firearms. Cannabis users have no gun rights even if they live in states that allow medical and/or recreational marijuana. These gun control laws are what have been at stake in the federal cases I described above. They are likely to be litigated in yet other federal court cases and – unless Congress finally does its job and legalizes cannabis – has a strong chance of making its way to the U.S. Supreme Court.

In the meantime, states are going to start doing what they’ve done since the late 90s – taking matters into their own hands. A good example of this is Missouri, which in 2021 passed House Bill 85, which was referred to as the Second Amendment Preservation Act (SAPA). SAPA, interestingly, does not mention marijuana at all. The law takes a more circuitous aim at federal intervention via gun control laws. Specifically, section 1.420 says:

The following federal acts, laws, executive orders, administrative orders, rules, and regulations shall be considered infringements on the people’s right to keep  and bear arms, as guaranteed by Amendment II of the Constitution of the United States and Article I, Section 23 of the Constitution of Missouri, within the borders of this state including, but not limited to:

(1) Any tax, levy, fee, or stamp imposed on firearms, firearm accessories, or ammunition not common to all other goods and services and that might reasonably be expected to create a chilling effect on the purchase or ownership of those items by law-abiding citizens;

. . .

(4) Any act forbidding the possession, ownership, use, or transfer of a firearm, firearm accessory, or ammunition by law-abiding citizens; and
(5) Any act ordering the confiscation of firearms, firearm accessories, or ammunition from law-abiding citizens.

Because qualifying individuals could use medical marijuana in accordance with Missouri law, SAPA declared federal gun control laws to be infringements of those persons’ rights. And section 1.430 of SAPA therefore held such infringing laws “invalid” and incapable of enforcement within the state.

Before getting into the controversy here, it’s worth pointing out there there are at least some plausible arguments in favor SAPA under the Tenth Amendment to the U.S. Constitution. As Reason pointed out back in 2021: “The Controlled Substances Act even contains a 10th Amendment-like clause which says when in ‘positive conflict’ between state and federal law where both cannot stand, that state law should take precedence in areas that would ‘otherwise be within the authority of the state.'” The problem is that up until now, I’m not aware of any court accepting a Tenth Amendment claim for marijuana rights.

As you might expect, the federal government didn’t much care for SAPA. Indeed, it sued the state of Missouri, and in early March 2023 handily defeated the state – SAPA violated the Supremacy Clause, it was preempted by federal law, and so on. I won’t get into the weeds on this one, but suffice it to say, Missouri lost and lost hard.

Now let’s just assume for a second that Missouri had prevailed or a different state passed a similar law. At the end of the day, firearm sellers must still have federal firearms licenses (FFLs) and comply with federal laws. One of those laws is the gun control law that’s led to this mess in the first place. That law says in plain terms that:

It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person, including as a juvenile—

. . .

(3) is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)) . . . .

Even if SAPA or a comparative law provided a shield against these federal laws, FFL holders would still risk their licenses if they violated the law. So in reality, the law seems more symbolic than anything else.

The bottom line is that if marijuana users are to ever have gun rights restored, they need to focus in on changing federal law. With a potential circuit split on marijuana gun rights emerging, that may happen in the near future. Stay tuned to the Canna Law Blog for more updates.