Cannabis Musings - October 21, 2025
The Supreme Court takes (up) drugs.
Friends, in case you missed it, the U.S. Supreme Court is going to hear a case about cannabis. No, not that one - one about guns and drugs. Throw in some money and you have yourself a Megadeth song. In particular, the issue the Supreme Court is going to consider is whether:
“the federal statute that prohibits the possession of firearms by a person who ‘is an unlawful user of or addicted to any controlled substance,’ violates the Second Amendment as applied to respondent.”
SCOTUSBlog, the premier website for Supreme Court followers, did a nice writeup of the case’s facts, so we won’t get into too much detail, but, in short, the FBI charged the defendant with violating a particular federal law after finding a gun, cannabis, and cocaine in his home: “It shall be unlawful for any person … who is an unlawful user of or addicted to any controlled substance … to … possess … any firearm.” (That’s 18 U.S.C. § 922(g)(3) for those following along at home.). This law has vexed the state-licensed cannabis industry for a long time because, it requires anyone who wants to legally purchase a firearm to make a confusing certification when filling out the Bureau of Alcohol, Tobacco, Firearms and Explosives Form 4473:
“Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance? Warning: The use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medicinal or recreational purposes in the state where you reside.” (emphasis in the original)
The reminder about cannabis being illegal is particularly galling, coming right after the certification that the applicant is not a “fugitive from justice,” (how often does that box get checked “Yes”?), but it’s the temporal and pathological ambiguities in the syntax that make us fardeiget (“anxious”).
What if I used to use cannabis, but I’m not using cannabis while I’m filling out the form? What does it mean to be a “user” or “addicted”? Why does the warning talk about “possession,” which isn’t mentioned in the certification or the underlying law? Why does the form also include depressants, stimulants, and narcotic drugs, while the law only mentions controlled substances? Does alcohol count as a “depressant”? The Tylenol with codeine my doctor prescribed as a “narcotic”? My triple skim wet cappuccino with Celsius chaser as a “stimulant”? Many a cannabis lawyer has had a difficult time advising their client on how to approach this form (we really do have ethics rules), although, I suspect that many clients, just like the defendant in this case, just shrug, fill out the form, figuring “ish kabibble – I’m already breaking federal law anyway.” (Definitely not legal advice!)
Earlier this year, the Fifth Circuit Court of Appeals took the position in this case in a per curiam opinion (which means that it wasn’t signed by a particular judge, or, as my Constitutional Law professor, Marty Redish, would say, it means that the judges were “too chicken” to take ownership of the decision (only lawyers find that joke even remotely funny)), that, based on a prior decision by the same appellate court, timing is everything – the law only applies if the defendant was “intoxicated” at the time they possessed the gun. The federal government filed a petition for a writ of certiorari asking the high court to overturn that decision by appealing to a sort of common sense:
“By disqualifying only habitual users of illegal drugs from possessing firearms, the statute imposes a limited, inherently temporary restriction — one which the individual can remove at any time simply by ceasing his unlawful drug use. This restriction provides a modest, modern analogue of much harsher founding-era restrictions on habitual drunkards, and so it stands solidly within our Nation’s history and tradition of regulation. And habitual illegal drug users with firearms present unique dangers to society — especially because they pose a grave risk of armed, hostile encounters with police officers while impaired.”
In other words, it doesn’t really make sense to limit the law to only when the defendant is actually using drugs, because that makes it too easy on the person we’re trying to prosecute. Also, history. Oh, and drug users are dangerous.
Not pointing out the irony that the currently conversative Department of Justice is actively pursuing a line of argument that supports more restrictive gun rights, the defendant explains in their response that the government’s argument cuts way too broad a swath:
“[D]rug users are a class of people categorically prohibited from possessing firearms under [the statute]. And that prohibition should apply without any court process or procedure.
…
Under Petitioner’s interpretation of the statute, millions of Americans are currently violating [the law] and do so on a continuing basis. It bears repeating that nothing in [the law] requires ‘habitual use’ as an element of the offense. Any American who owns a firearm and uses a controlled substance which is illegal under federal law violates [the law] under Petitioner’s theory.”
In other words, if you use cannabis and own a gun, you’re breaking federal law twice.
Both sides also spend a lot of time looking at how U.S. laws from the 18th and 19th centuries dealt with laws relating to “drunkards” (“shikkers,” if you’re wondering if there’s a Yiddish word for that), because the Supreme Court seems to have a thing for that lately, and a generous cherrypicking of those early laws will likely be used to justify whatever ruling the majority of the Court wants. And what that ruling will be is really hard to guess at this point. On the one hand, the majority of the current Court really likes gun rights. On the other hand, it generally doesn’t like criminal defendants. It all sort of comes down to how they want to define “user.” But this case has everything the Court loves – guns, crime, history, and statutory interpretation, so it’s not too surprising the Court wants to hear it. Maybe we’ll get lucky and get some more Justice Thomas dicta about federal cannabis policy.
At heart, this isn’t really a cannabis case – it’s a Second Amendment case. But it’s emblematic of a U.S. drug policy that doesn’t reflect the reality on the ground. Just like how state-licensed cannabis gets caught in the wake of Section 280E, a rule that responded to the funniest case in U.S. Tax Court history, it’s also fallen into the grips of an ambiguous statute that’s been overinterpreted by a federal agency to pad prosecutions and confuse form-filler-outers. Yet another example of how so much in this business is inadvertent.
Be seeing you.
© 2025 Marc Hauser. None of the foregoing is legal, investment, or any other sort of advice, and it may not be relied upon in any manner, shape, or form. The foregoing represents my own views and not those of Jardín, B&Y Ventures, or anyone else who employs/hires me.