DEA Moves to Reclassify Marijuana, but Gun Owners Will Still Face Hurdles

The Drug Enforcement Agency’s move to reclassify cannabis from a Schedule I drug to Schedule III is long overdue, in my opinion, but the change isn’t likely to have a major impact on lawful gun owners, who are prohibited by federal law from using any “unlawful” drugs while they possess a firearm. 

Under Schedule III, cannabis would still be considered a controlled substance, and state laws allowing recreational use would continue to be in conflict with federal statute. Currently 24 states have legalized the recreational sale of cannabis, while 38 states allow it to be used with a doctor’s prescription. Gun owners might be able to keep ahold of their guns and partake of the devil’s lettuce if they have a doctor’s prescription, but recreational use could still result in federal charges. 

The immediate effect of rescheduling on the nation’s criminal justice system would likely be more muted, since federal prosecutions for simple possession have been fairly rare in recent years.
But loosening restrictions could carry a host of unintended consequences in the drug war and beyond.
Critics point out that as a Schedule III drug, marijuana would remain regulated by the DEA. That means the roughly 15,000 cannabis dispensaries in the U.S. would have to register with the DEA like regular pharmacies and fulfill strict reporting requirements, something that they are loath to do and that the DEA is ill equipped to handle.
Then there’s the United States’ international treaty obligations, chief among them the 1961 Single Convention on Narcotic Drugs, which requires the criminalization of cannabis. In 2016, during the Obama administration, the DEA cited the U.S.’ international obligations and the findings of a federal court of appeals in Washington in denying a similar request to reschedule marijuana.

Federal prosecutions for simple possession might be rare, but it’s a little more common to see charges brought for being an “unlawful user of drugs” in possession of a firearm. In fact, the Supreme Court will likely take up the case of Darnell Daniels later this year after it releases its opinion in U.S. v. Rahimi, which is expected to come down in June. While Rahimi deals specifically with gun possession by a person subject to a domestic violence restraining order, the Court is holding on to at least four other cases involving prohibited persons statutes, and could either accept one or more cases or grant cert, vacate the lower court decisions, and remand the cases back down to the appellate courts for a re-hearing in light of what the majority says in Rahimi

Daniels was arrested in 2022 after officers discovered a pistol, rifle and “several marijuana cigarette butts” in his car’s ashtray. He admitted to officers that he regularly smoked marijuana, and also possessed several firearms. He was convicted of illegally possessing firearms as an unlawful drug user and was sentenced to 46 months in federal prison, but the Fifth Circuit Court of Appeals overturned his conviction after it concluded that the federal statute violated Daniels’ Second Amendment rights.  

Biden’s Justice Department contends that only “law-abiding citizens” possess the right to keep and bear arms, and once Daniels decided to spark up he lost his ability to lawfully own a firearm. Daniels’ public defenders maintain that the Fifth Circuit got it right, arguing that there’s nothing in the Second Amendment’s text, history, or tradition that justifies the complete and total disarmament of those using intoxicating substances. 

the Government “posits that Daniels—a repeat marihuana user—was presumptively dangerous enough to be disarmed. Although there is some historical evidence for the government’s underlying principle, the historical examples of danger-based disarmament do not justify § 922(g)(3)’s application here.” Those “historical examples” – “political traitors” and“religious dissidents” who were perceived to be “potential insurrectionists” – posed a very different type of danger. 
Had the Court of Appeals adopted the Government’s general “principle” argument, particularly when the closely analogous historical intoxication statutes were part of the record before the Court of Appeals, then its decision would have undermined the Bruen test and turned the Bruen analysis into a different version of the means-end scrutiny test. As this Court held in Bruen, “Analogical reasoning requires judges to apply faithfully the balance struck by the founding generation to modern circumstances, and contrary to the dissent’s assertion, there is nothing ‘[i]roni[c]’ about that undertaking. It is not an invitation to revise that balance through means-end scrutiny.”

According to the DOJ, smoking a joint is, legally speaking, just as onerous an offense as treason or insurrection, even if you live in a state where you can walk into a dispensary and purchase an ounce of weed. That won’t change even if the DEA reclassifies cannabis as a Schedule III drug. Theoretically, medical marijuana users should be able to access their Second Amendment rights once the reclassification has taken place, but I need to read the fine print of the proposed rule before drawing any firm conclusions about its impact on gun ownership for that group of Americans. 

I do know that Joe Biden isn’t going to purposely take any action that would benefit gun owners in any way. The DEA’s proposed reclassification isn’t about providing gun owners with access to marijuana, even with a doctor’s prescription. It’s all about drumming up support for his re-election among young voters

The federal proposal to reschedule marijuana would have broad support among voters. A nationwide survey last fall commissioned by the Coalition for Cannabis Rescheduling Reform found nearly 60% of likely voters supported rescheduling, with 65% of younger voters 18 to 25 favoring it, the highest of any demographic group polled. Overall, the number of Americans who think marijuana should be legal reached a record-high at 70%, according to a Gallup poll in the fall.

From a political perspective this is a fairly smart move on the part of the president’s team, though it’ll be interesting to see if it really moves the needle once voters realize this doesn’t change anything about cannabis and recreational use. It certainly doesn’t do anything to help Darnell Daniels or others facing years behind bars for possessing guns while using pot. As far as Joe Biden’s concerned, they still won’t be “law abiding citizens”, and their Second Amendment rights are null and void.  

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