Making Colorado Safe for Guns and Pot

A planned initiative would challenge federal prohibitions on marijuana smokers’ right to carry guns

Two Colorado firearms instructors are planning a ballot initiative in their state to help smash a huge violation of citizens’ rights: that marijuana smokers, according to the federal government, are not allowed to own guns.

The 1968 Gun Control Act declared in section 922(g) that unlawful users of, or those addicted to, a controlled substance can’t legally possess guns. As more and more Americans use marijuana, medically or recreationally, and legally under state law, the feds have more urgently stressed that point. In September 2011, the ATF issued a memo reminding federal firearms licensees there’s no exception to section 922(g). If they sell a gun to someone they know or reasonably suspect to be a marijuana user, even if that use is state-legal, the dealer is violating federal law. Gun purchasers must fill out a form from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) in which they are legally compelled to truthfully answer: “Are you an unlawful user of, or addicted to, marijuana…or any other controlled substance?”

These sorts of categorical exclusions of certain types of Americans from their Second Amendment rights might not stand up to intelligent judicial scrutiny in a post-Heller world. Others have already tried and failed to get the Supreme Court to overturn such blanket restrictions of gun rights for illegal aliens and those convicted of domestic violence. But as Jacob Sullum has written, the Sixth Circuit Court of Appeals declared this month in Tyler v. Hillsdale County Sheriff’s Department that prohibiting gun ownership to everyone who’s ever been committed to a mental institution is overly broad, not narrowly tailored to a compelling state interest, and thus invalid. Whether other circuits or, eventually, the Supreme Court agree remains to be seen.

The Colorado activists behind the would-be ballot measure, Edgar Antillon and Isaac Chase, are making an end run around courts as they launch the Colorado Campaign for Equal Gun Rights. The measure would amend Colorado law so that state-legal use of marijuana would be no barrier to receiving a permit to carry a concealed weapon.

Antillon says that as a firearms instructor he has run into many students who “are users of marijuana for medicinal or recreational reasons. The bottom line is we saw they were being denied their right to self-defense and we thought it appropriate to start this campaign for equal access.”

This Colorado effort isn’t the first recent attempt to topple the pot smoker exception to the Second Amendment. Oregon saw a victory for the cause of gun-toting pot smokers in the 2011 state case Willis v. Winters. Local sheriffs thought that being required to issue concealed carry permits to state medical marijuana permit holders put them in violation of federal law, and sued. The state’s Supreme Court ultimately declared that “State law requires sheriffs to issue concealed gun licenses without regard to whether the applicants use medical marijuana.” That doesn’t mean federal officials, or even state sheriffs, can’t still enforce the federal law against marijuana users possessing guns; merely that such users can get an Oregon permit to carry a weapon and are not violating state law by doing so.

The losing sheriffs tried to take the issue to the Supreme Court, but in January 2012 the Court declined to take up the case. Although it was an Oregon state case, the court’s arguments should be of some value to a hypothetical lawyer who might have to defend any victory for the proposed Colorado amendment, if such victory occurs in 2016. As an Oregon appeals court declared in one iteration of Willis v. Winters as it moved through the state’s court system, and as the Oregon Supreme Court upheld, the “circuit court correctly concluded that Oregon’s concealed handgun licensing statutes are not preempted by the federal Gun Control Act. The concealed handgun licensing statutes do not affirmatively authorize controlled substance users to possess handguns; rather, they exempt a licensee from state criminal liability for the possession of a concealed handgun.” If Colorado ends up also having a concealed carry permit process via ballot measure that allows for known pot users to get such a permit, the same argument could be made that a mere lack of a state carry permit process that punishes pot users is not inherently pre-empted by the federal Gun Control Act—though that is no guarantee a federal court will agree.

Wilson v. Holder is a federal case also challenging the prohibition of medical marijuana licensees from owning guns. Rowan Wilson, then a Nevada medical marijuana card holder, tried to buy a gun from a dealer who knew her status. He refused to sell to her because of the ATF’s letter. The ATF policy that dictated the dealer’s decision violated her Second Amendment rights, she believed, and in October 2011 sued about it in federal court in Nevada.

In March 2014, Wilson’s case was tossed out of court by Judge Gloria Navarro, a decision that Wilson and her lawyers are now appealing to the Ninth Circuit. Among their arguments in their Ninth Circuit filings: it is illegitimate to equate marijuana license possession with current illegal drug use; the ATF letter essentially declares a class of citizens criminals with no due process, and even constitutes a substantive change in law by making mere medical license holders presumptive criminals without following the Administrative Procedure Act.

Wilson’s lawyers also insist the 2011 Ninth Circuit Dugan decision that Navarro relied on in declaring the challenged ATF policy or any other prohibition on gun possession related to drug use had no Second Amendment implications was about someone with a career of criminality, including drug and weapons trafficking. Thus, his position is not analogous in terms of a compelling state interest in prohibiting weapon possession to an otherwise law-abiding medical marijuana card possessor such as Wilson

On the legislative front, Sen. John Walsh (D-Mont.) proposed a bill amendment this year to defund Department of Justice and ATF attempts to enforce gun laws against state-legal medical marijuana users, but it failed.

ATF’s Colorado office didn’t respond to a request for comment on the proposed ballot measure by press time. But the mixture of pot and guns seems very likely to be too combustible for the feds to ignore, except, maybe, with a Rand Paul Justice Department and ATF, or a Ted Cruz one. Dave Workman of the Second Amendment Foundation (SAF), which has fought successful court battles to extend Second Amendment rights in the wake of Heller, is sure the Justice Department and ATF would crack down hard on any state that tried to ignore federal prohibitions on drug user’s gun possession.

Antillon and Chase’s idea, though it has already won national press attention from the Associated Press and Fox News, is at a very early stage. Antillon admits they haven’t fully worked out a fundraising or legal strategy, though he offers $100,000 as a likely minimum to even get on the ballot, much less fight via ads through the election cycle.

His group has done randomized internal polling of 2500 Coloradans, he says, that finds 60 percent support. Many would-be supporters who themselves are licensed weapons dealers might be understandably reluctant to publicly endorse or fund the effort, he thinks. The list of gun world endorsees so far is small, although the campaign only filed their first paperwork with the Colorado secretary of state a couple of weeks ago.

Antillon says he knows it’s not apt to appeal to the likes of the National Rifle Association, though when Fox and Friends got Tony Fabian of the Colorado State Shooting Association to appear opposing Antillon, Fabian said he was not so much against the proposition as merely not for it, because his group’s mission is to “provide shooting opportunities for law abiding residents and because of the federal ban” support of the measure “would run afoul of that mission.”

Representatives of major national Second Amendment rights groups and major national marijuana rights groups this week both said that, while they can’t predict how the initiative would do if it makes the ballot, the melding of gun rights and pot rights wasn’t a high priority for either movement individually.

Workman of the SAF says that to the firearms rights movement, the prohibition against marijuana smokers “on a scale of one to 10, might be a two or three” and that most such activists think “there are a lot more important things going on with the Second Amendment than this.”

Paul Armentano of the National Organization for Reform of Marijuana Laws (NORML) says his group has long been aware of the feds’ prejudice against pot users when it comes to guns, especially compared to other potentially judgment-impairing substances such as alcohol of prescription meds. He’s unaware of any national polling on the issue, and his sense is that “this is not an issue that rises to the top of the priority list for the average marijuana consumer.”

That said, NORML’s executive director Allen St. Pierre did list Second Amendment rights for marijuana users as one of his major concerns going forward into 2015, but Armentano says as a matter of policy they don’t comment on the specifics of potential ballot measures until they’ve actually made the ballot.

Given the convoluted multistep process of pre-approval for Colorado ballot measures, it will be at least three months, Antillon says, before a signature collection process might even begin. Colorado law links signatures required to 5 percent of the votes cast in the previous secretary of state election, which means this proposal will need over 98,000 signatures to get before Colorado voters. It’s uncertain how resonant an issue this will be, how many citizens straddle the crossroads of gun rights and marijuana rights. Associated Press reports that Colorado officials do not know how many people in the state have been denied gun possession or carry rights because of marijuana.

For now, Antillon’s nascent operation doesn’t have a well-planned strategy or an idea where big money might even potentially come from. By crossing the streams of Second Amendment and pot activism, they risk alienating large swaths of the dedicated activist financiers of both sides, staking ground in a libertarian middle that recognizes self-defense, self-medication, and self-pleasuring that harm no one else’s life or property as rights eminently worth fighting for. Changing state’s relationship to pot via initiative can be difficult and costly, and it doesn’t always work the first time it’s tried. It’s a grand battle symbolic of a Libertarian Moment. Even if it fails to go all the way the first time around, it’s a logical constitutional victory  that deserves to be won, whether via lawsuit or ballot.

By: Brian Doherty | December 31, 2014