A federal judge's recent ruling in Oklahoma could further shield gun-owning cannabis users in Colorado, but legal protection is still stuck in a gray area, according to a prominent attorney.
Registering to own a firearm has been tricky for cannabis users to navigate, especially for licensed medical marijuana patients, who are recorded in state databases. And having hard evidence of cannabis use is a big no-no on the ATF's firearm ownership registration form.
This month, though, a judge with the 10th Circuit Court of Appeals ruled that the federal gun ownership ban for cannabis users was unconstitutional and violates Second Amendment rights. Although the feds are expected to challenge the ruling, it was a big victory for gun owners and cannabis users alike — and in Colorado, which is included in the 10th Circuit, that victory could actually mean something.
Doug Sargent is a cannabis attorney for Greenspoon Marder LLP, a national law firm with offices in Denver. According to Sargent, state and federal judges in Colorado can still rule against gun ownership rights for cannabis users, but this recent ruling could prove an ace in the hole if an appeal goes far enough. We interviewed Sargent to learn more about what the recent case does and doesn't do for gun-toting pot smokers, and what needs to happen at the federal level to fully protect them.
Westword: Was that federal judge's ruling only effective in that specific case, or is there any wide precedent set here? Since this was in federal court, do Colorado cannabis users have a newfound freedom here?
Doug Sargent: The precedent, in terms of its binding authority, is only binding where the decision was made. But as a precedential matter, it could be persuasive for judges in other jurisdictions, so it does have more of a far-reaching effect than just in Oklahoma.
There are district courts, which are trial courts in the federal court system, and then there are the circuit courts of appeal. The 9th Circuit includes states on the West Coast, and the 10th Circuit includes both Colorado and Oklahoma. So whatever the 10th Circuit says would be law in both Oklahoma and Colorado, because they're interpreting federal statute, which is not a specific state law matter. So whatever the 10th Circuit decides does have an effect in all of the states in that circuit.
A district court judge is still free to do whatever he or she believes is appropriate until the 10th Circuit weighs in. If the 10th Circuit again determines that this is unconstitutional, then a judge is bound by that. But until the 10th Circuit speaks on that issue, judges are free to do whatever they want unless there's a binding authority above them. One of the key issues there is that the judge in Oklahoma relied on a recent Supreme Court case, which just had an opinion issued last June. That case sort of established a new standard for restrictions for Second Amendment rights. That part of the analysis is kind of newfound territory for courts that are handling these issues, so it changed the playing field quite a bit.
What Supreme Court case was that?
It was the New York State Rifle & Pistol Association, Inc., vs. Bruen. In Bruen, the Supreme Court essentially ended what had been an ends-justify-the-means test that courts have used. Now it requires that if somebody's conduct is covered by the Second Amendment, then the government must affirmatively prove that its regulations of firearms is a part of the historical tradition of firearm restrictions in the United States. So the government has to affirmatively take on that burden, and based on the judge's interpretation, that is a pretty high standard.
Was that a controversial case for the Supreme Court?
It was an important decision, but it was not surprising given the current makeup of the court and the presidents who appointed those Supreme Court justices. And, not surprisingly, the Western District of Oklahoma judge was a Trump appointee. So it fell along party lines, which you would generally expect in a case like that. After that ruling, this is now something that could eventually be taken on by the Supreme Court.
Do you see the 10th Circuit ruling being appealed or challenged?
It would have to be appealed to the 10th Circuit, but I would be very surprised if the federal government didn't appeal the Oklahoma judge's decision first. That process can take a while, but the only court above the circuit courts is the U.S. Supreme Court, and the Supreme Court doesn't have to hear appeals; they choose whichever cases they want to hear.
Oftentimes, the Supreme Court will take up issues in what we call circuit splits, where different circuit courts of appeal have issued contradictory rulings. Back in 2016, the 9th Circuit Court of Appeals upheld the federal statute and said it was not unconstitutional to strip Second Amendment rights [of cannabis users]. But the 10th Circuit, where Oklahoma is located, is also where Colorado is located. The 9th Circuit Court decision was before the 10th Circuit's, so it didn't apply under the same standard at the time. I'm not sure that 9th Circuit decision would hold up anymore if it's challenged, but that's for another case down the road.
Will this decision play a role in any other current cases involving cannabis and gun ownership?
It likely will. There's a similar case in Florida, which is ongoing, and one of the attorneys in that case said they would make the court aware of this recent ruling.
Could state laws or protections do anything for cannabis users who own guns?
It has been addressed that way in some states, but I think those statutes are of limited value. It's similar to states that have legalized marijuana. Those state statutes still conflict with federal law, which says marijuana is still a controlled substance and federally illegal, so these state statutes likely wouldn't protect anyone from federal prosecution. I think the state law protections like that are more symbolic than anything else, because federal law trumps contradictory state law.
Is there anything else state governments could do, like withhold information sent to the federal government?
That's not an area I specialize in. There's not a lot states can do, but if things aren't reported to the federal government or prosecuted under state law, then it would be harder for the federal government to know or prosecute those types of cases.
Is federal legalization the only realistic way to change this?
Yes. I think that's what it would really take, because I don't think stand-alone legislation for this would do much. We already have one federal judge saying the current statute is unconstitutional, and a constitutional amendment is very, very unlikely. So it's going to take federal legalization in order for this issue to no longer be in a gray area — or we would need the Supreme Court to weigh in on it, or a larger number of federal cases decided in a consistent way so there's a consensus view on how this issue should be handled. Right now, we just have that one decision in Oklahoma.
This interview was edited for length and clarity.