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Scholarship Highlight: Guns and Marijuana, Second Amendment Debates, and Intergovernmental Immunity

By: Andrew Willinger

The scholarship highlighted in this post does not necessarily represent the views of the Duke Center for Firearms Law.

In a new paper posted to SSRN and forthcoming in the Ohio State Journal of Criminal Law, Nicholas Goldrosen examines the connection between marijuana legalization and gun restrictions premised on drug use.  Goldrosen performs an empirical analysis of the impact of marijuana legalization, observes that “18 U.S.C. 922(g)(3) is likely not a bulwark against legal marijuana users suddenly becoming violent,” and argues in favor of “unified federal reform of either 922(g)(3) or the entire Controlled Substances Act” to address the intersection between marijuana use and firearms (rather than relying on legal challenges under Bruen, which have produced conflicting outcomes).

Two articles in the most recent issue of the Missouri Law Review also address Second Amendment-related topics.  An article by Dru Stevenson provides a comprehensive point-by-point summary of commentary by legislators during the original Congressional debates over the Second Amendment.  And Dominic Biffignani considers how challenges by the federal government to state “Second Amendment sanctuary” laws may implicate the doctrine of intergovernmental immunity (we have covered litigation over Missouri’s “Second Amendment Protection Act” here and here).  

Nicholas Goldrosen, Subtracting 420 from 922: Marijuana Legalization and the Gun Control Act After Bruen, Ohio St. J. of Crim. L. (forthcoming)

Abstract:

Numerous states have legalized marijuana for medical and recreational use. Nonetheless, federal law prohibits users of marijuana, which remains illegal federally, from possessing firearms. I interrogate this legal tension from two angles. First, this paper brings empirical evidence to this conversation: Does legalizing marijuana lead to more gun deaths?

It doesn’t. This article analyzes the effect of recreational and medical marijuana legalization on gun homicides, suicides, and deaths as well as on gun prevalence, gun purchasing, and federal gun prosecutions. I combine administrative data from the National Vital Statistics System, National Instant Criminal Background Check System, and United States Sentencing Commission for the period from 2010 through 2020. To estimate a causal effect, I employ a difference-in-differences method with staggered treatment timing from Callaway and Sant’Anna (2021) to compare states that have legalized marijuana to those that have not yet legalized marijuana but will during the study period. There is no evidence of a statistically significant treatment effect of either recreational or medical marijuana legalization on firearms deaths, homicides, or suicides. Additionally, there is no evidence that legalization causes greater firearms sales or prevalence, or that the federal gun prohibition for marijuana users deters gun killings post-legalization.

Secondly, this regulation has received new scrutiny after the Supreme Court’s recent ruling in NYSRPA v. Bruen, under which firearms regulations must be justified by consistency with “this Nation’s historical tradition of firearm regulation.” Courts have come to conflicting answers on whether the prohibition on gun ownership by marijuana users accords with the Second Amendment under Bruen. I therefore survey three potential legal paths for resolving the conflict between state legalization of marijuana and federal gun laws. First, legislators might directly amend the Gun Control Act to allow for gun possession by some or all marijuana users. Second, legislators might reform marijuana’s status within the Controlled Substances Act more broadly. Finally, an uncertain future for the controlled-substance-user prohibition exists in the courts post-Bruen. The Bruen decision’s unworkable tests do not clearly support either upholding or striking down this ban. If anything, the interpretation of the federal ban on gun possession by marijuana users under Bruen highlights the impracticability of its test. Amongst these solutions, I argue that broader Controlled Substances Act reform is the likeliest to provide consistency while not harming public safety.

Dru Stevenson, Revisiting the Original Congressional Debates About the Second Amendment, 88 Mo. L. Rev. 455 (2023)  

Abstract:

Many scholars and courts have written about the historical background of the Second Amendment, either to emphasize its connection to state-level citizen militias or to argue that the Amendment protects an individual right to own and carry guns for self-defense. While many authors have mentioned the original congressional debates about the Second Amendment, the literature is missing a thorough, point-by-point analysis of those debates, situating each statement in Congress within the context of the speaker’s background and political stances on issues overlapping with the right to keep and bear arms. This Article attempts to fill this gap by providing a methodical discussion of each comment or argument made in Congress when the Second Amendment was under consideration. This discussion addresses how each of the congressmen’s comments connect to public statements made by the same members of Congress in the months that followed on related topics: taxation and public debt related to militias, the supply of available firearms and their legal status as private or public property, the institution of slavery, westward expansion, and especially the complications for each of these issues posed by the Quakers, who became the center of attention during the debates about the Second Amendment. These original congressional debates have taken on more importance following the Supreme Court’s recent holding that courts should decide Second Amendment challenges based on historical evidence from the years immediately preceding and following ratification. While this Article does not take a position on current litigation over modern firearm regulations, the discussion here can offer courts and commentators new insights into the original public meaning of the Second Amendment.

Dominic Biffignani, The Applicability of Intergovernmental Immunity Doctrine to Second Amendment Sanctuary Laws, 88 Mo. L. Rev. 369 (2023)

Abstract:

To what extent can states enact legislation that frustrates federal regulation of firearms—in an effort to maximize protections of the Second Amendment and related state constitutional provisions— without running afoul of the Supremacy Clause? The answer to that question lies within the intergovernmental immunity doctrine, a virtually obscure legal doctrine with origins in the Supremacy Clause and Chief Justice John Marshall’s famous opinion in McCulloch v. Maryland.

For many years, the United States Supreme Court was reluctant to clarify the contours of intergovernmental immunity. This did not stop the federal government from asserting the doctrine in various actions to strike down state laws frustrating federal schemes—most notably to challenge California laws frustrating the federal government’s immigration framework. The federal government’s assertion of the doctrine achieved mixed results, with both district courts and the circuit courts applying the doctrine in a haphazard manner. However, the United States Supreme Court’s recent clarification of intergovernmental immunity in United States v. Washington breathed new life into the doctrine and cemented its importance in future disputes between the federal government and the states

In response to President Biden’s election and vow to increase federal regulation of firearms, many state legislatures passed what this Article calls Second Amendment sanctuary laws. The general purpose of these laws is to resist increasing federal regulation of firearms. Recently, the federal government has brought declaratory judgment actions seeking to declare some Second Amendment sanctuary laws unconstitutional, asserting intergovernmental immunity as a basis for declaring these state laws invalid. This Article recounts the history of intergovernmental immunity (and its doctrinal brethren), argues why the doctrine is important to Second Amendment sanctuary litigation, and applies it to various Second Amendment sanctuary laws in order to provide an applicable framework for future practitioners, legislators, and courts tackling intergovernmental immunity issues.