On Jan. 22, ATF published an interim final rule (IFR) that revises the agency’s approach to determining who is an “unlawful user of or addicted to any controlled substance” and therefore prohibited from owning or receiving firearms under federal law. The rule comes at a time when states are increasingly liberalizing their regulation of marijuana and as a Second Amendment challenge to the underlying statute looms at the U.S. Supreme Court. Overall, the changes would exclude drug use that was remote, infrequent, or sporadic or that occurred under the prescription or supervision of a medical doctor. Whether this narrower reading of the statute would help it survive scrutiny at the U.S. Supreme Court remains to be seen.
Federal statute does not define the terms “addict” or “unlawful user” for the purposes of this prohibition. ATF’s prior rule, enacted in 1997, gave the terms a broad reading and included “inference[s]” of when it was triggered, including, “a conviction for use or possession of a controlled substance within the past year; multiple arrests for such offenses within the past 5 years if the most recent arrest occurred within the past year; or persons found through a drug test to use a controlled substance unlawfully, provided that the test was administered within the past year.”
Yet some federal appellate court decisions construed the statutory language more strictly than the rule. The Ninth Circuit, for example, held the government had to prove “the defendant took drugs with regularity, over an extended period of time, and contemporaneously with his purchase or possession of a firearm.” ATF’s inferences were not consistent with this standard.
This trend intensified following the U.S. Supreme Court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen, which required the government to demonstrate a historical pedigree dating to the founding era for laws that infringed upon conduct covered by the Second Amendment’s text. Multiple federal appellate courts limited the application of the federal prohibition relating to addiction and unlawful drug use, particularly in the context of marijuana use, as inconsistent with the Second Amendment’s history and tradition of regulation.
This included the Fifth Circuit, which found the federal prohibition unconstitutional as applied to a nonviolent marijuana user of sound mind who was not accused of carrying a firearm while actually under the influence of any drug. In United States v. Connelly, the Court wrote:
The short of it is that our history and tradition may support some limits on a presently intoxicated person's right to carry a weapon (and for that reason Paola's facial challenges to §§ 922(g)(3) and 922(d)(3) fail), but they do not support disarming a sober person based solely on past substance usage. Nor, contrary to what the government contends, do restrictions on the mentally ill or more generalized traditions of disarming “dangerous” persons apply to nonviolent, occasional drug users when of sound mind. We AFFIRM as to Paola's as-applied challenge and REVERSE as to her facial challenges.
Later, the U.S. Supreme Court accepted the government’s petition to review another case from the Fifth Circuit that was summarily decided under Connelly. That case, known before the Supreme Court as U.S. v. Hemani, presents a far less sympathetic defendant than the one in Connelly. The government made insinuations that Hemani, a dual U.S.- Pakistani citizen, was poised to commit fraud in the U.S. on behalf of a foreign terrorist organization and otherwise had contacts with and expressed sympathies toward such organizations. He was also accused by the government of being an illegal drug dealer and of illegally using cocaine.
Hamani’s actual conviction, however, was based on admitted use of marijuana “every other day” at the same time a search of his residence turned up drugs and a handgun. The government acknowledged before the Fifth Circuit that Connelly required dismissal of Hemani’s case but reserved the right to argue Connelly was wrongly decided.
Thus, although the government’s strategy in Hemani is obviously to paint him in as sinister a light as possible, the actual criminal conduct of which he stood accused is similar to that off many non-violent, otherwise law-abiding users of marijuana or other controlled drugs.
ATF’s new IFR dispenses with the former rule’s inferences. A prohibited addict is now defined as one “who uses a controlled substance and demonstrates a pattern of compulsively using the controlled substance, characterized by impaired control over use[.]”
A prohibited “unlawful user” is now one “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[.]”
The IFR specifically rejects the idea that the government must prove the defendant was actually under the influence while engaging in firearm-related conduct for a valid conviction under the statute: “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.”
But it also states that 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.”
With regard to prescription drugs, the IFR further clarifies: “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.”
The government is clearly trying to ensure the facts of Hemani – recurrent illegal drug use under circumstance in which a firearm is readily accessible – are covered by the rule. But the IFR provides more leeway to sporadic users or those whose use is “prescribed” by a physician and materially conforms to the terms of that prescription.
Significantly, the rule does not categorically exempt state-legal marijuana use from the federal prohibition. It also does not state whether it would recognize marijuana use that is prescribed by a physician in compliance with state law as being “lawfully prescribed” or “prescribed by licensed physician” as the IFR uses those terms. Marijuana possession remains illegal under federal law even if it occurs in compliance with the law of the state or locality in which it occurs.
Although the IFR took effect upon publication, ATF will be accepting comments on it until June 30, 2026. The easiest and most efficient way to comment on the rule is through the government’s e-rulemaking portal (after clicking on the hyperlink, look for the green box labeled “SUBMIT A PUBLIC COMMENT” on the upper righthand side of the page, and click that box to open the portal). Changes could still occur before the rule becomes final.
Notably, the U.S. Supreme Court should issue its decision in Hemani before the end of the comment period. ATF has indicated that the final rule, or a succeeding notice of proposed rulemaking, will take the court’s opinion into account.
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