By Aaron Edward Brown
In 2022, much to the surprise of many Minnesotans—and even certain lawmakers—the Legislature passed a law that provided guidance on the now-permissive use of certain forms of psychoactive hemp.1 Specifically, the law provided greater clarity concerning the use of hemp products that became legal under federal law through the Agricultural Improvement Act of 2018—aka the farm bill.2 The farm bill allowed these psychoactive products through an exception that defines hemp as cannabis containing less than .3% tetrahydrocannabinol (THC) by dry volume, and removed hemp from the Controlled Substances Act of 1970.3 To be clear, hemp and “marijuana”4 are both cannabis sativa plants and visually indistinguishable from one another.5 They do, however, have one critical difference, which becomes abundantly clear if your main goal in using the plant is to experience its mind-altering effects: Hemp contains very low amounts of the psychoactive ingredient THC, whereas cannabis contains relatively high levels of THC.6 To put it more simply, in its pure form the latter will get you high and the former will not.
Because federal and Minnesota state law exclude hemp from the applicable statutes that implicate cannabis generally, enterprising individuals have been able to grow hemp and extract or otherwise isolate the minimal amounts of THC inside, which can then be used to create any number of consumable items (such as gummies, beverages, and tinctures). These various products technically still fall under the 2018 farm bill’s definition of hemp even though the actual THC content can be at a level similar to that of many cannabis products.7 And like that, in July 2022 people in Minnesota interested in the mind-altering effects of THC no longer needed to visit their former high school classmate or aspiring local musician to score technically illegal cannabis. Instead, Minnesotans can now go to their local smoke shop, gas station, or even microbrewery to participate in the age-old experience of consuming THC, overeating some snacks, and passing out to Netflix a little too early in the evening. But with this newfound ability to get high in Minnesota without breaking the law,8 many may be wondering what the implications are for firearm owners who are also interested in the THC experience.
Firearms & THC use
Under federal law, individuals who “habitually use”9 cannabis are legally prohibited from buying or possessing10 firearms. The penalty is up to 15 years in prison.11 Minnesota had a parallel restriction under state law until this summer.12 The federal prohibition continues to exist even in light of the fact that nearly one half of the population of the United States lives in a state that has expressly legalized the recreational use of cannabis (and two-thirds live in a state that has legalized medicinal cannabis).13 To add injury to inconvenience, the federal firearm prohibition (922(g)(3)) does not distinguish between a medicinal user and a recreational user because the Controlled Substances Act (CSA) classifies cannabis as a Schedule I drug with no redeeming medicinal value, a lack of accepted safety for use under medical supervision, and a high (no pun intended) potential for abuse.14 In comparison, cocaine, fentanyl, and oxycodone are all considered to have at least some medicinal value—and are on a lower schedule than cannabis, which exempts medicinal users of these substances from the prohibitions in 922(g)(3).15
This scheduling determination regarding cannabis, which can only be described as completely untethered from reality, has created many obstacles for individuals with serious medical ailments who could benefit by medicinal cannabis use. For some, chief among these obstacles is the patient’s loss of their Second Amendment rights, which has dissuaded patients from engaging in otherwise beneficial cannabis-related therapies.16 To combat this quagmire, several different strategies have emerged, including lawsuits17 and Minnesotans lobbying the Department of Health to petition the federal government to exempt cannabis from Schedule I of the CSA.18 To date, these strategies have been unsuccessful, notwithstanding the fact that the scientific consensus is that cannabis has medicinal benefits.19
Medicinal and recreational users alike can face many collateral consequences related to their cannabis use. Although the industry is by and large heavily regulated in the states that allow cannabis some legal status, the consequences include housing discrimination in certain instances, as well as potential employment discrimination in certain states.20
Interestingly, far less regulated21 and researched22 hemp products that provide a similar ability to become intoxicated also provide less risk23 in terms of collateral consequences—including for firearm owners—than more regulated cannabis products in states that allow both. Even more absurd, however, is that the risk profile for a recreational hemp user who owns a firearm in Minnesota is lower than for a firearm-owning medicinal cannabis patient. Of course, there are still rules, including around carrying or actively possessing a firearm while intoxicated, which (for good reason) Minnesota law prohibits.24 This is true regardless of whether the individual carrying a firearm is intoxicated because of hemp, cannabis, alcohol, or some other mind-altering substance.25
Future outlook in light of Bruen
Perhaps one of the most impactful Second Amendment cases in the history of our country was decided this past summer. The case, New York State Rifle & Pistol Assn., Inc. v. Bruen,26 rejected the consensus two-step legal analysis that developed after the Supreme Court’s prior significant Second Amendment case, Heller.27 Under Bruen, a regulation that the Second Amendment’s “plain text covers” can only be found constitutional if the regulation is “consistent with the nation’s historical tradition of firearm regulation.”28 The Bruen test—in its relatively short existence—has led federal courts around the country to declare many decades-old laws unconstitutional, including certain federal firearm prohibitions for individuals subject to civil domestic violence prevention orders,29 felony indictments,30 or who knowingly possessing a firearm that has had the serial number removed.31 But other federal courts have come to the exact opposite conclusion on many of these same issues,32 teeing up what seems to be an inevitable SCOTUS fight to further interpret the limitations articulated in Bruen.33
With respect to cannabis use and firearm possession, there has been a budding disagreement among federal courts in the preceding months concerning whether 922(g)(3) can ever be constitutionally applied to a habitual cannabis user. As of now, a number of federal courts who have heard a post-Bruen challenge to 922(g)(3) (as it relates to cannabis) have upheld the prohibition,34 but others have found it incompatible with Bruen’s demands.35 The decisions upholding 922(g)(3) as applied to cannabis users have largely arrived at their conclusions under two separate theories.
The first is that violators of 922(g)(3) are not covered by the plain text of the Second Amendment because the plain text only covers “ordinary, law-abiding citizens.”36 There are several reasons why the author views this reasoning as problematic in this context. First, the plain text of the Second Amendment doesn’t qualify who can own a firearm and instead uses the term “the people.”37 In other places in the bill of rights where the term “the people” is used, such a qualification wouldn’t make sense.38 Second, simple marijuana possession is no longer criminalized in most states and it is apparently no longer being treated as a criminal offense in the view of the federal government.39 Thus, even if the Second Amendment protection only applies to “ordinary, law-abiding citizens,” cannabis users would still be covered by the plain text of the Second Amendment.
The second is that 922(g)(3) is consistent with the historical tradition of firearm regulation in the United States. Courts upholding 922(g)(3) under this reasoning do so by comparing several sets of “analogous” laws—the first being state restrictions on carrying a firearm while intoxicated and the second being laws aimed at preventing people considered to be dangerous from possessing firearms.40 In the author’s view, these comparisons are flawed because both sets of past laws don’t resemble historical analogues that are “relevantly similar” when applied to recreational cannabis users—and especially when applied to medicinal cannabis users.41
With respect to 17th and 18th century laws governing intoxication and firearm possession, 922(g)(3) is simply way too broad, as it criminalizes all active and constructive possession of firearms regardless of whether the individual is presently intoxicated. This criminalization of even constructive possession of a firearm is not analogous to prohibiting carrying a firearm while intoxicated. It is, however, perfectly analogous to Minn. Stat. §624.7142, subd. 2 (or any number of other states’ variations), which does prohibit active firearm possession while intoxicated.42 Importantly the historical justifications for these laws similarly show that the concern was related to the danger created by people who were actively intoxicated, and not people who sometimes drank alcohol and also constructively possessed or sometimes used a firearm legally while sober. In other words, these laws (much like our current ones) acknowledge people who drink alcohol on a regular or habitual basis generally don’t need to have their firearm access restricted at all times and in all places, but rather just when they are intoxicated.43
With respect to historical laws disarming people with a proclivity for violence, the idea that tens of millions of recreational and medicinal cannabis users are all inherently dangerous solely because they sometimes use cannabis for medicinal or recreational purposes is borderline offensive and factually inaccurate in any reality other than the 1936 propaganda classic Reefer Madness. These laws are not the “relevantly similar” historical analogues that Bruen demands44 because there is nothing inherently dangerous about someone who uses cannabis recreationally or medicinally one day and then constructively owns, or uses in a lawful manner, a firearm the next day. But even if there was, the government would need to show that an individual’s dangerousness exists through violent, forceful, or threatening conduct, to get the correct “relevantly similar” fit under Bruen.45 And to state the obvious, consuming a cannabis gummy is not in and of itself real or attempted violent, forceful, or threatening conduct. Although many rounds of briefing will undoubtedly be held on this specific issue, it would not surprise the author if many circuits (including the 8th Circuit) eventually struck down 922(g)(3) when applied to cannabis users.
Conclusion
The questionable constitutionality of 922(g)(3) and its state-law equivalents is not the only reason to suspect potential change. Recently, the Biden administration issued a statement noting that the Secretary of Health and Human Services and the U.S. Attorney General were both being asked to initiate a review of how cannabis is scheduled under federal law.46
On the state level, Minnesota’s new Democratic trifecta recently passed a legal framework for the recreational use of cannabis.47 Included in this framework is an amendment to Minnesota’s ineligible-persons statute, which provides that recreational or medicinal users above the age of 21 are not prohibited from firearm possession solely because of their cannabis use. This is an important step. But further state-level measures could go a long way in reducing the associated risks, in particular for Black Minnesotans who have been nearly five times more likely to face a cannabis-related charge than white Minnesotans.48 These measures could include prohibiting state law enforcement from aiding federal authorities in investigating or prosecuting potential actions under 922(g)(3) (related to cannabis use), or requiring the Minnesota commissioner of health to apply for a federal exemption to the CSA’s scheduling of cannabis on behalf of Minnesota’s medicinal patients.
We have learned a lot in the intervening 50 years since the federal government officially criminalized cannabis use. One thing we have learned is that the health, safety, and financial costs associated with alcohol use far exceed the costs associated with cannabis use.49 Another is that many people find a tremendous amount of relief in their cannabis treatment,50 with some reporting that the impact is literally life-changing.51
To recap, although the law has recently changed in Minnesota, the federal firearm prohibition exists for all cannabis users (medicinal or otherwise) even though the same cannot be said about recreational users of similarly intoxicating hemp products.52 It is important to recognize the Minnesota Legislature’s bold action in setting up a thoughtful and well-regulated legal marketplace for cannabis and ending the catastrophic damage brought about by prohibition. But it is also important to recognize that the work is not finished, as the federal firearm prohibition as applied to cannabis users creates an unreasonable risk for Minnesotans who own firearms. This risk remains particularly intolerable for the nearly 40,000 (and growing) medicinal users53 in Minnesota. Simply put, our society should be removing obstacles—not maintaining them—for people to access the medicinal help they need. Hopefully with some continued bold action on the state and federal level, we won’t be in the weeds on this issue for much longer.
AARON EDWARD BROWN is an in-house counsel at Securian Financial Group, Inc. He primarily advises Securian Financial’s stakeholders and subsidiaries in connection with M&A transactions and other corporate governance-related matters. His past legal scholarship has explored issues including domestic violence, firearm regulation, and other public policy issues. Opinions expressed in this publication are solely his own and do not express the views or opinions of his employer, Securian Financial. Questions or comments can be directed to brownaarone@gmail.com.
Notes
1 Shaueneen Miranda, Minnesota lawmakers voted to legalize THC edibles. Some did it accidentally, NPR (7/2/2022), https://www.npr.org/2022/07/02/1109576113/minnesota-thc-edibles-accident-delta-8.
2 See H.R. 2 – 115th (2017 – 2018): Agricultural Improvement Act of 2018, H.R. 2, 116th Cong. (2018), https://www.congress.gov/115/plaws/publ334/PLAW-115publ334.pdf.
3 Id.
4 Although the state of Minnesota and the U.S. federal government continue to use the term “marijuana” to define cannabis sativa plants that contain high levels of THC, the author will instead refer to cannabis sativa plants with high levels of THC as “cannabis.” This preferred naming convention is due to the history of the term marijuana and its connection to propaganda designed to criminalize cannabis use and disparage certain groups of people. For a further discussion please see, Alex Halperin, Marijuana: is it time to stop using a word with racists roots?, The Guardian (1/29/2018), https://www.theguardian.com/society/2018/jan/29/marijuana-name-cannabis-racism.
5 Matt Shipman, Is Hemp The Same Thing As Marijuana?, NC State University News (2/14/2019), https://news.ncsu.edu/2019/02/is-hemp-the-same-thing-as-marijuana/#:~:text=Hemp%20and%20marijuana%20are%2C%20taxonomically,genus%20(Cannabis)%20and%20species.
6 Id.
7 For more information on the two common ways manufacturers produce hemp-derived THC, see Elena Schmidt, Legal Delta-9: How is It Made, and How is That Possible?, ACS Laboratory (6/2/2022), https://www.acslabcannabis.com/blog/retail-legal-delta-9-how-is-it-made-and-how-is-that-possible (discussing isomerization and extraction as the two main ways manufacturers produce hemp-derived THC).
8 Technically vendors could already sell psychoactive hemp-derived products, but the legal status was brought into question by a Minnesota Court of Appeals opinion. See Rep. Tina Liebling, Regulating the sale of edibles containing hemp-derived THC (7/20/2022), https://www.house.mn.gov/members/Profile/News/12268/35938.
9 “Habitually use” has most commonly been defined as the individual (i) using drugs regularly or habitual; and (2) close in time to the prohibited action; however, some courts have found that even a onetime use of an illicit substance like cannabis can make someone a “habitual user” for purposes of 922(g)(3) under certain circumstances. See United States v. Carnes, 22 F.4th 743, 748 (8th Cir.), reh’g denied, No. 20-3170, 2022 WL 540599 (8th Cir. 2/23/2022), and cert. denied, 214 L. Ed. 2d 180, 143 S. Ct. 370 (2022).
10 For purposes of 18 USC §922(g) “possession” means both active and constructive possession and prohibits ownership generally unless the owner doesn’t actively or constructively possess the firearm. See Henderson v. United States, 575 U.S. 622 (2015). For ease, I will use the terms “ownership” and “possession” interchangeably in this article.
11 18 USC §922 (g)(3); 18 USC §924(a)(8).
12 Minn. Stat. 624.713, Subd. 1(10)(iii), amended by HF 100 (2023).
13 Natalie Fertig, Mona Zhang and Paul Demko, Nearly half of Americans to reside in states where Marijuana is legal, Politico (11/9/2022), https://www.politico.com/news/2022/11/09/half-americans-state-marijuana-legal-00065987.
14 21 USC §812.
15 Id.
16 See, e.g., Briana Bierschbach, Medical Marijuana advocates pushing for Second Amendment rights, Star Tribune (6/17/2021), https://www.startribune.com/medical-marijuana-advocates-pushing-for-second-amendment-rights/600068875/ (noting that individuals are prioritizing their Second Amendment right over cannabis treatment).
17 See, e.g., Wilson v. Holder, 7 F. Supp 3d 1104 (Nev. 2014); Fried v. Garland, 2022 WL 16731233 (N.D. Fla. 11/4/2022).
18 See supra Note 16.
19 See UN Commission on Narcotic Drugs reclassifies cannabis to recognize its therapeutic uses, World Health Organization Press Release (December 4, 2020), https://www.who.int/news/item/04-12-2020-un-commission-on-narcotic-drugs-reclassifies-cannabis-to-recognize-its-therapeutic-uses; see also, Jonathan N. Adler, M.D. & James A. Colbert, M.D., Medicinal Use of Marijuana—Polling Results, N Engl J Med, 368:e30 (2013), https://www.nejm.org/doi/10.1056/NEJMclde1305159 (noting that around 8 in 10 doctors approved the use of medicinal cannabis).
20 See Sophie Quinton, Workers Who Legally Use Cannabis Can Still Lose Their Jobs, Pew (3/2/2022), https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2022/02/28/workers-who-legally-use-cannabis-can-still-lose-their-jobs (noting only MN, DC, and 13 other states ban employer discrimination against workers who use cannabis for medical reasons).
21 See Gary S. Kaminsky & Neil M. Willner, The Tip of the Spear Piercing the Regulated Cannabis Industry: How Intoxicating Hemp Cannabinoids and the Illicit Market Pose Significant Challenges to the Emerging Industry, JDSupra (4/21/2022). https://www.jdsupra.com/legalnews/the-tip-of-the-spear-piercing-the-4104795/ (noting that hemp-derived cannabinoids are free from oversight and the stringent testing mandates governing similar intoxicating products in the regulated cannabis marketplace).
22 For example, certain states have blocked the sale of hemp derived Delta 8 in part because the lack of research into its psychoactive effects. See Kaitlin Sullivan, Delta 8 THC is legal in many states, but some want to ban it, NBC News (6/28/2021), https://www.nbcnews.com/health/health-news/delta-8-thc-legal-many-states-some-want-ban-it-n1272270.
23 This remains true under federal law for naturally derived hemp products; however, the DEA recently provided guidance that synthetically created compounds (e.g., Delta 9 THCO) do not fall under the hemp exception. Dario Sabaghi, Delta-8 and Delta-9 THC-O are Controlled Substances, DEA Says, Forbes.com, https://www.forbes.com/sites/dariosabaghi/2023/02/16/delta-8-and9-thc-o-are-controlled-substances-dea-says/.
24 Minn. Stat. §624.7142, subd. 1(3).
25 Id.
26 New York State Rifle & Pistol Assn., Inc. v Bruen, 142 S. Ct. 2111 (2022).
27 District of Columbia v. Heller, 554 U.S. 570 (2008).
28 Bruen, 142 S. C.T. at 2129-30.
29 See United States v. Rahimi, 61 F.4th 443 (5th Cir. 2023).
30 See United States v. Stambaugh, 2022 WL 16936043 (W.D. Okla. 11/14/2022)
31 See United States v. Price, 2022 WL 6968457 (S.D.W. Va. 10/12/2022).
32 See, e.g., United States v. Rowson, 2023 WL 431037 (S.D.N.Y.) (finding statute prohibiting persons under felony indictment from receiving firearms is constitutional under Bruen); United States v. Holton, 2022 WL 16701935 (N.D. Tex. 11/3/2022) (finding statute prohibiting possession of firearm with serial number removed is constitutional under Bruen).
33 The main tension is that two separate courts can come to two separate conclusions on the same exact issue based solely on how tightly each court draws the analogous historical law to the challenged law. This issue should be resolved (or at least explored) in United States v. Rahimi, Docket No. 22-915, which the Supreme Court agreed to hear next term.
34 See, e.g., United States v. Black, 2023 WL 122920 (W.D. La. 1/6/2023);
United States v. Sanchez, 2022 WL 17815116 (W.D. Tex. 12/19/2022); Fried, WL 16731233.
35 See, e.g., United States v. Harrison, 2023 WL 1771138 at *8 (W.D. Oklahoma 2/3/2023); United States v. Connelly, 2023 WL 2806324 (W.D. Tex. 4/6/2023).
36 Sanchez, 2022 WL 17815116 at *2-3 (holding that the language of § 922(g)(3) is not covered by the plain text of the Second Amendment because the Second Amendment only covers ordinary, law-abiding citizens).
37 See U.S. Const. amend. II.
38 Compare U.S. Const. amend. II. with U.S. Const. amend. I (“Congress shall make no law…[prohibiting]…the right of the people peaceably to assemble…”); U.S. Const. amend. IV (“The right of the people to be secure in their persons…”); U.S. Const. amend. IX (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”) (emphasis added). See also, Justice Stevens dissent in Heller pointing out that this type of limitation would negate the Fourth Amendment entirely. Heller, 554 U.S. at 644 (Stevens, J., dissenting).
39 See Joseph R. Biden, A Proclamation on Granting Pardon for the Offense of Simple Possession of Marijuana, The White House (10/6/2022), https://www.whitehouse.gov/briefing-room/presidential-actions/2022/10/06/granting-pardon-for-the-offense-of-simple-possession-of-marijuana/ (granting a full unconditional pardon under both DC and federal law for every United States citizen who committed the offense of simple possession of cannabis in violation of the CSA).
40 See, e.g., United States v. Posey, 2023 WL 1869095 (N.D. Indiana 2/29/2023); Fried, WL 16731233 at *7.
41 Bruen, 142 S. C.T. at 2123.
42 Minn. Stat. §624.7142.
43 United States v. Harrison, 2023 WL 1771138 at *8 (W.D. Oklahoma 2/3/2023).
44 Bruen, 142 S. C.T. at 2132.
45 See Harrison, 2023 WL 1771138 at *17 (citing Binderup v. Att’y Gen. United States of Am., 836 F.3d 336, 375 (3d Cir. 2016) (noting that “because longstanding prohibitions focused on dangerousness exhibited by past violent, forceful, or threatening conduct, ‘[d]ispossession on the basis of a conviction for these sorts of crimes comports with the original public understanding of the scope of the right to keep and bear arms.’”).
46 Supra note 39.
47 HF 100 (2023).
48 Christopher Ingraham, Minnesota’s Black Marijuana Users Far More Likely to Face Arrest than White Ones, Minnesota Reformer (9/7/2022), https://minnesotareformer.com/2022/09/07/minnesotas-black-marijuana-users-far-more-likely-to-face-arrest-than-white-ones/.
49 Adie Rae, PhD and Mandy Armitage, MD, Are Marijuana and Alcohol Equally Dangerous, or Is One Safer Than the Other?, GoodRx Health (October 2021), https://www.goodrx.com/well-being/substance-use/is-cannabis-safer-or-healthier-than-alcohol.
50 Christopher Ingraham, 92% of patients say medical marijuana works, The Washington Post (10/1/2014), https://www.washingtonpost.com/news/wonk/wp/2014/10/01/92-of-patients-say-medical-marijuana-works/.
51 Joanna Ing and Cheryl Varley, Medical cannabis ‘saved my life’, BBC News (5/18/2021), https://www.bbc.com/news/health-57098858.
52 Supra note 3.
53 Jay Kohls, Advocates say legalized marijuana could help Minnesota medical cannabis program, KSTP-TV (11/27/2022).