Last week Jake highlighted this Fifth Circuit opinion, United States v. McGinnis, in which Eric McGinnis raised a Second Amendment defense to his conviction under 18 U.S.C. § 922(g)(8) for possession of a firearm while subject to a domestic violence protective order. Judge Stuart Kyle Duncan applied the two-part framework for Second Amendment challenges that has been adopted by nearly all circuits (including the Fifth Circuit) and upheld McGinnis’s conviction.
Earlier this week, in United States v. McGinnis, a Fifth Circuit panel upheld 18 U.S.C. § 922(g)(8) against a Second Amendment challenge. That provision prohibits a person subject to certain types of restraining orders from possessing guns or ammunition while the order is in effect. With this decision, the Fifth joins a chorus of other courts brushing aside facial challenges to the federal prohibitors.
In twenty-two states, ATF allows licensed firearm dealers (FFL’s) to accept a state concealed carry license or permit (in Michigan, the terminology is Concealed Pistol License, or CPL) in lieu of a federal background check, because those states have concealed carry permit requirements at least as stringent as the federal background check requirements (see the ATF Permanent Brady Permit Chart, so-named because the state’s permit or license program fulfills the requirements of the federal Brady Law background checks for firearm purchases on an ongoing basis). In practice, this means that permit/license holders in these states can skip the NICS background check when purchasing firearms from a licensed gun dealer, whether online, in-store, or at a gun show, even though normally required for the dealer to do the background check. Note the caveat that an individual’s permit or license must be less than five years old, so in states that issue “lifetime” permits or licenses (Indiana, Louisiana, Missouri, and Tennessee), the permit/license holder will have to renew it every five years in order to skip the NICS background check when purchasing a firearm from an FFL.
In an opinion issued this past Wednesday, the Ninth Circuit in Mai v. United States rejected an as-applied challenge to 18 U.S.C. § 922(g)(4), which prohibits firearm possession for anyone who “has been committed to any mental institution.” The ATF interprets the provision to cover only those who have been involuntarily committed, but the statutory bar applies to those individuals for life (absent some exceptions). In Mai, the Ninth Circuit joined the Third Circuit in rejecting the Second Amendment challenge, splitting with the Sixth Circuit, which is the only federal court of appeals to have found the statute unconstitutional as applied to a particular case.
In my forthcoming article, The Complex Interplay Between the Controlled Substances Act and the Gun Control Act, I focus on 18 U.S.C. §922(g)(3), which in its current form incorporates the Controlled Substances Act (CSA) by reference and thereby prohibits violators of the CSA from possessing a firearm. This statutory intersection currently results in more than 14,200 individuals per year failing a background check for gun purchases, and around two hundred prosecutions per year for possession of guns by drug users as the lead charge. Circuit courts have consistently upheld the constitutionality of §922(g)(3), even in the years after Heller.
ATF Guidance Documents and Enforcement
In September 2011, the Bureau of Alcohol, Tobacco, Firearms, and Explosives released an Open Letter to All Federal Firearms Licensees (FFL’s), providing regulatory guidance as to the intent of 18 U.S.C. §922(g)(3) and its interaction with state laws that legalize marijuana in some way. The guidance document reminds FFL’s that as the Controlled Substances Act lists marijuana as a Schedule I controlled substance “and there are no exceptions in Federal law for . . . . medicinal purposes, even if such use is sanctioned by State law,” the use of marijuana qualifies an individual under federal law as an “unlawful user” for purposes of 18 U.S.C. §922(g)(3). Nevertheless, since 1996, at least thirty-three states and the District of Columbia have legalized medical marijuana.
In January 2018, the Department of Justice (DOJ) issued a memorandum (the “Sessions Memo”) rescinding all previous guidance regarding prosecutions in medical marijuana states, deferring instead to nebulous “well-established general principles” which included considerations such as “the deterrent effect of criminal prosecution.” This superseded prior DOJ policy (also known as the “Cole Memorandum” from 2013) which focused prosecutions, in relevant part, in “[p]reventing violence and the use of firearms in the cultivation and distributions of marijuana” and deferring to state and local law enforcement for activity beyond the stated scope of DOJ priorities. It is unclear how the shift in DOJ directives after the 2018 memorandum has impacted federal prosecutions of gun possession prosecutions under §922(g)(3) in states with medical marijuana and legalized marijuana, but 2017 statistics indicate that the number of prosecutions under §922(g) generally had already begun to increase following a decline in the period from 2013 to 2015 (the timeframe after the Cole memorandum through the end of the sitting administration). Given the growing resistance among some big city prosecutors to charge for mere possession of marijuana without aggravating factors indicating dealing, the federal prosecutors’ directives appear to be going in a different direction than at least some state prosecutors in areas having the highest incident rates.
William P. Barr became Attorney General in 2019, and announced that he supports “the prosecutorial priorities” that were put in place by the Sessions Memo, which included an emphasis on “violent crime, drugs, immigration, and national security.” The DOJ appears to have turned more of its resources to the prosecution of firearms offenses, prosecutions under §922(g) are at an all-time high, and convictions under §922(g) have risen every year since 2015 (see here).
Gun Permits & Licenses for Lawful Marijuana Users
Four months before the 2011 ATF Open Letter, Oregon’s highest court, sitting en banc, decided Willis v. Winters, which held that the federal prohibition on firearm possession “by persons who, under federal law, are ‘unlawful user[s] of a controlled substance,’” does not preempt the State’s licensing statute. The Oregon Medical Marijuana Act authorizes medical marijuana use and requires registration of such authorized users, and Oregon state statutes have a “shall issue” regime for concealed handgun licenses. Several sheriffs had denied concealed carry licenses applications and renewals submitted by medical marijuana registrants, despite their full compliance with the State’s statutory standards for licensing, on the premise that 18 U.S.C. §922(g)(3) preempted the State’s licensing statute – arguably, issuance of a license under the circumstances would violate §922(t)(3) and §922(a)(6) (which prohibits false statements on background check forms and similar actions). The Willis court, however, held that under Oregon’s statutory code, the sheriffs are statutorily-bound “to issue CHLs to qualified applicants, without regard to the applicant’s use of medical marijuana.” Because the licensing statute proscribes the concealment of firearms and “is not directly concerned with the possession of firearms,” it does not interfere with the full enforcement of the Federal statute. The court explained:
[I]t is possible that the sheriffs in this case could themselves enforce section 922(g)(3) of the federal Gun Control Act against medical marijuana users who possess guns in violation of federal law. The federal act makes such possession illegal, the sheriffs generally are authorized to enforce federal as well as state law, and no state law prohibits the sheriffs from taking such enforcement actions. But it appears that the sheriffs also wish to enforce the federal policy of keeping guns out of the hands of marijuana users by using the state licensing mechanism to deny CHLs to medical marijuana users. The problem that the sheriffs have encountered is that Congress has not enacted a law requiring license denial as a means of enforcing the policy that underlies the federal law, and the state has adopted a licensing statute that manifests a policy decision not to use its gun licensing mechanism for that purpose: State law requires sheriffs to issue concealed gun licenses without regard to whether the applicants use medical marijuana.
In other words, the sheriffs cannot deny concealed handgun licenses to medical marijuana registrants, but they are free to arrest those registrants if they do, in fact, possess a handgun. Federal law does not mandate the use of state gun licensing schemes in enforcing §922(g)(3), nor, the court held, could Congress do so without commandeering “the policy-making and enforcement apparatus of the states.” This decision remains good law in Oregon.
The Willis decision garnered attention from both marijuana advocates and pro-gun advocates, but other cases since then have been trending in the other direction, and the federal classification of marijuana as a Schedule I drug under the Controlled Substances Act continues to give concern to the courts and create confusion for firearm owners who may use medical marijuana in the (majority of) states that have now legalized its use. For a recent example, in Bradley v. United States, 402 F.Supp.3d 398 (N.D. Ohio, Aug. 14, 2019), a gunowner wanted to register for Ohio’s medical marijuana program and claimed that §922(g)(3) prevented him from doing so, thereby violating his Second Amendment rights, as well as the Equal Protection clause. Bradley was diagnosed with post-traumatic stress disorder (PTSD) but was barred by federal law from participating in Ohio’s medical marijuana program because he was in possession of a firearm. The court rejected his claims, in part because he faced no imminent threat of prosecution (lacked standing) and partly because his Second Amendment claim was implausible. The court cited numerous cases from other district and circuit courts consistently holding that §922(g)(3) did not violate the Second Amendment, including situations where marijuana consumption would have been legal under state law, yet the courts affirmed “the constitutionality of §922(g)(3) under the Second Amendment” in that context.
The Sixth Circuit reached the same conclusion in United States v. Bellamy, 682 Fed.Appx. 447 (6th Cir. 2017) (unpublished), holding that §922(g)(3) applied even if defendant held a state-issued medical marijuana card. At the same time, Bellamy did not include a Second Amendment claim, but was decided on statutory and preemption grounds.
I’m reading a draft of a fantastic forthcoming article by Dru Stevenson on the how federal drug law operates as what he calls one of the primary forms of gun control today. Under federal law anyone “who is an unlawful user of or addicted to any controlled substance” is forbidden from possessing firearms. So those active users are barred, whether they have any conviction or not. And, of course, the felon prohibitor in 18 U.S.C. § 922(g)(1) bars anyone who has ever had a felony drug conviction from ever again possessing firearms. We are fortunate that Dru will be blogging on his own article, but in this short post, I wanted to just highlight a few things that stood out to me from his article and the broader debate over guns and drugs (also the name of a great article by Benjamin Levin).
A new Third Circuit case, Holloway v. Attorney General, sheds more light on how that circuit will consider as-applied challenges to the federal felon prohibitor—18 U.S.C. § 922(g)(1). Consistent with its fractured opinion in Binderup v. Attorney General, the Holloway court reaffirmed that seriousness, not violence, is the proper measure for whether an otherwise disqualifying conviction can constitutionally be applied to permanently extinguish Second Amendment rights. Courts in the Third Circuit naturally (as one of the few circuits to have vindicated an as-applied challenge) have an active docket of as-applied challenges and Holloway will serve as additional guidance for courts confronted with these challenges.
In his telling, Bradley Beers was having a really bad day in 2005 when, as a 19-year-old college student, he returned home “deeply overwhelmed and stressed” about school. He threatened to take his life, so his mother took him to a local hospital for mental health treatment. The hospital committed him on an involuntary basis. Beers is now in his 30s and has not needed mental health treatment since this incident, but because of 18 U.S.C. § 922(g)(4) he is barred from ever again possessing firearms. He lost a Second Amendment challenge to that law in the Third Circuit and is now, with a team of prominent lawyers, seeking Supreme Court review.
In the last few weeks, two new cert petitions have been filed asking the Supreme Court to review recurrent issues in litigation over the right to keep and bear arms. Below are links to the petitions and excerpts of their Questions Presented. We’ll be watching these as the Court comes back to a new Term next week.