(Photo credit: jirkaejc/Newscom).
The U.S. Department of Justice has finalized a new process for restoring federal firearm rights that specifically excludes marijuana use and addiction from drug-related grounds that would otherwise make an applicant presumptively ineligible.
Under the final rule, announced August 17, people prohibited from possessing firearms under federal law will be able to apply to the attorney general to have those rights restored. The department will consider criminal history, conduct since a conviction or other disqualifying event, substance use and other factors in determining whether an applicant poses a public safety risk.
The rule establishes several categories that generally result in an application being denied unless the person can demonstrate extraordinary circumstances. Among them are current unlawful use of or addiction to controlled substances and certain drug trafficking convictions within the previous 10 years.
Marijuana, however, is expressly carved out.
For purposes of the restoration program, DOJ defines a “controlled substance” using existing federal regulations but specifically excludes marijuana. It similarly exempts people whose only unlawful drug use or addiction involves marijuana from the rule’s drug-use-based presumption against restoring firearm rights.
The definition also means marijuana offenses do not fall under the special 10-year presumptive disqualification for convictions involving the manufacturing, distribution or dispensing of controlled substances. A felony marijuana conviction could still be covered by the rule’s broader five-year presumption applying to felonies that do not fall into another category, and DOJ may consider an applicant’s overall criminal history when reviewing a case.
DOJ said it made the marijuana exception following the U.S. Supreme Court’s June ruling in United States v. Hemani, as well as comments submitted during the rulemaking process.
In Hemani, the Supreme Court ruled that the federal government could not constitutionally apply the federal prohibition on firearm possession by unlawful drug users to the defendant based on his regular marijuana use under the circumstances of the case. The court found that his marijuana use alone did not establish that he was dangerous to himself or others.
DOJ said commenters similarly argued that regular marijuana use should not by itself be treated as evidence that someone poses a danger to the public. The department ultimately removed marijuana use and addiction from the presumptive disqualification criteria and eliminated a proposed requirement that applicants and their character references affirm that the applicant does not use marijuana.
The department acknowledged that extending the exemption to marijuana addiction goes further than the specific facts considered by the Supreme Court. However, officials said distinguishing between marijuana use and addiction on an applicant-by-applicant basis would create significant administrative difficulties.
DOJ plans to begin accepting candidates in stages. Thirty days after the rule is published in the Federal Register, the department will begin inviting applicants. The process will later expand to the public, initially allowing 5,000 people to apply before additional applicants are accepted.
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