Marijuana Moment: ATF Moves To Loosen Gun Ban For People Who’ve Used Marijuana Or Other Illegal Drugs

[Tokeativity]

A federal agency is moving to loosen rules that bar people who consume marijuana and other illegal drugs from being able to lawfully purchase and possess guns by making it so fewer people would be affected.

The new interim final rule from the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) seeks to update the definition of “unlawful user of or addicted to any controlled substance” under an existing policy that has been interpreted to deny Second Amendment rights to people who have used illegal substances a single time within the past year.

The filing, set to be published in the Federal Register on Thursday, comes as the U.S. Supreme Court is considering a case challenging the constitutionality of the ban, known in statute as 922(g)(3).

“This is an interim measure to address the harm to constitutional rights caused by erroneously denying a person a firearm while ATF further assesses whether new examples might be useful or feasible, given the variety of case-by-case fact patterns,” the filing says.

Under an earlier 1997 ATF rule, federal officials using the National Instant Criminal Background Check System to determine eligibility for gun purchases have “found prohibited use when, within the past year, the person has had a drug conviction for using or possessing; admitted to using or possessing; had any positive drug test, or was convicted of a misdemeanor crime involving drugs.”

“NICS may deny transfers to certain firearm purchasers based on NICS Indices entries indicating the persons admitted they used or possessed unlawful drugs a single time within the past year.”

In Fiscal Year 2025, ATF said that of the 8,817 standard denials in which a person did not receive a firearm due to being considered to be in violation of the drug user gun ban, 4,284 were predicated on an inference based on a single use.

“Such denials create unnecessary constitutional questions,” the agency said. “The prevailing opinion of many federal courts is that such denials are no longer supported under section 922(g)(3).”

ATF said it “may reassess the definition of unlawful user in a separate notice of proposed rulemaking” after the Supreme Court decides on the case it is set to hear on March 2, U.S. v. Hemani. It is also accepting public comments on the new rule through June 30, which may inform future actions.

The updated rule will “require evidence of a pattern of unlawful use” in order to deny firearms purchases, instead of continuing to rely on inference examples that NICS examiners have been using to determine current use of illegal drugs.

“It would be inappropriate to retain inference examples in the regulatory definition which suggest that an admission or other evidence of a single use-related event—including a single conviction or a single failed drug test—occurring in the past 12 months is sufficient evidence upon which to base an administrative forfeiture, to prosecute an individual for unlawfully possessing a firearm under section 922(g)(3), or to deny a firearm transaction,” the filing says. “This type of determination must be made based on evidence that indicates an individual regularly uses a controlled substance unlawfully.”

The new rule in the notice signed by ATF Acting Director Daniel Driscoll reads:

“Unlawful user of or addicted to any controlled substance. (1) A person who uses a controlled substance and demonstrates a pattern of compulsively using the controlled substance, characterized by impaired control over use, is addicted to a controlled substance.

(2) A person who regularly uses a controlled substance over an extended period of time continuing into the present, without a lawful prescription or in a manner substantially different from that prescribed by a licensed physician, is an unlawful user of a controlled substance.

(i) Such unlawful use is not limited to using a controlled substance on a particular day, or within a matter of days before shipping, transporting, possessing, or receiving a firearm. Rather, unlawful use requires evidence that the person has unlawfully used the substance with sufficient regularity and recency to indicate that the individual is actively engaged in such conduct. A person may be an unlawful current user of a controlled substance even though the substance is not being used at the precise time the person seeks to acquire, ship, transport, receive, or possess the firearm.

(ii) A person is not an unlawful user of a controlled substance if the person has ceased regularly unlawfully using the substance, or if the person’s unlawful use is isolated or sporadic or does not otherwise demonstrate a pattern of ongoing use. A person is also not an unlawful user if the person, while using a lawfully prescribed controlled substance, deviates slightly or immaterially from the instructions of the prescribing physician.”

Hannah Hill, vice president of the National Foundation for Gun Rights, said the change is “slightly more progun” than ATF’s existing policy.

“Basically, it means there has to be more of a pattern of controlled substance usage than just one time,” she said.

Upon review, this appears to bring ATF's rule in line with both court precedent & current ATF practice – which is slightly more progun than the actual wording of the '97 rule. Basically, it means there has to be more of a pattern of controlled substance usage than just one time. https://t.co/pXhSZQJAvN

— Hannah Hill (@hannahhill_sc) January 20, 2026

In recent interviews with Marijuana Moment, several Republican senators shared their views on the federal ban on gun possession by people who use marijuana—with one saying that if alcohol drinkers can lawfully buy and use firearms, the same standard should apply to cannabis consumers.

In U.S. v. Hemani, the gun rights case before the Supreme Court, Trump administration Solicitor General D. John Sauer told the justices in a briefing that the federal ban should be upheld, in part because people who use illegal drugs “pose a greater danger” than those who drink alcohol.

Attorneys general for 19 states and Washington, D.C. recently filed a brief siding with the government, even though many of them represent states where cannabis is legal.

Firearm control groups including Everytown for Gun Safety, Second Amendment Law Scholars, Brady Center to Prevent Gun Violence, Giffords Law Center to Prevent Gun Violence and Global Action on Gun Violence have told the Supreme Court to overturn the lower court’s ruling in the matter, for example. A coalition of history and law professors also submitted a brief.

Smart Approaches to Marijuana (SAM) and 21 other prohibitionist groups also filed a brief, urging justices to uphold the constitutionality of the federal gun ban for people who use cannabis—which they claim is associated with violence and psychosis.

The Biden administration was evidently concerned about potential legal liability in federal cases for people convicted of violating gun laws simply by being a cannabis consumer who possessed a firearm, documents recently obtained by Marijuana Moment show.

The previously unpublished 2024 guidance from former President Joe Biden’s Justice Department generally cautioned U.S. attorneys to use discretion in prosecuting federal cannabis cases, particularly for offenses that qualified people for pardons during his term. But one section seems especially relevant as the Supreme Court takes on a case challenging the constitutionality of the current federal gun statute.

With respect to Hemani, in a separate August filing for the case, the Justice Department also emphasized that “the question presented is the subject of a multi-sided and growing circuit conflict.”

The post ATF Moves To Loosen Gun Ban For People Who’ve Used Marijuana Or Other Illegal Drugs appeared first on Marijuana Moment.

View the live link on MarijuanaMoment.net