Analysis: Is the ATF’s New Rule for Drug Users a ‘Curb Your Enthusiasm’ Scenario?

The Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) desires to vary what conduct counts towards the federal drug person gun prohibition. However how a lot of a sensible influence will that basically have?

On January 22, the ATF revealed an Interim Remaining Rule (IFR) revising the definition of an “illegal person of or hooked on any managed substance.” Whereas the company frames this as a big shift towards “constitutional equity,” a better have a look at the executive and statistical actuality means that for the common potential gun purchaser, this rule might change little or no. 

Earlier than diving into the particular adjustments within the wording of the regulation, I need to make clear the authorized panorama right here. First, we’ve a longstanding federal statute, 18 U.S.C. § 922(g)(3), that prohibits firearm possession (and gross sales to or from) anybody who “is an illegal person of or hooked on any managed substance (as outlined in part 102 of the Managed Substances Act (21 U.S.C. 802)).” That statute isn’t being modified in any respect by this new rule, though there’s a case pending earlier than the Supreme Courtroom that challenges the constitutionality of this legislation, or no less than its utility in some instances.  The change is to how the federal authorities is deciphering two of the ambiguous phrases in that legislation: what’s a “person,” and what’s “addicted,” for functions of this statute?  Some gun rights advocates are against the statute itself, or no less than its utility to milder medicine like marijuana, however the statute itself isn’t being modified by this rule. (In case you are interested by studying extra about this statute and its historical past, I revealed an educational article about it in 2020).

Second, as complicated as this may occasionally appear, the identical statute could also be interpreted a little bit in a different way by totally different branches of the federal government (like courts versus the police), or totally different departments inside a department that carry out totally different duties associated to implementing the legislation. Within the case of illegal gun possession beneath particular sections of § 922(g), totally different approaches could also be taken by enforcement officers and prosecutors who cost people with violations of the statute, versus the workplace staffers who run the background verify system for gun purchases. The legislation stands out as the similar, however totally different individuals in numerous places of work resolve whether or not to cost somebody with violating the legislation (take them to courtroom) and whether or not a person will get to buy a firearm from a licensed gun supplier, and since their jobs are so totally different, they could strategy the statute in a different way – the truth is, they usually do. Prosecutors need to carry instances they’ll win, in order that they attempt to learn the statute the best way they count on the courtroom to learn it, and prison trials take a number of time and work, in order that they attempt to prioritize the extra severe crimes or extra harmful violators. Somebody working on the Nationwide Instantaneous Prison Background Test System (NICS) workplace, in deciding whether or not to approve a gun, doesn’t want to fret in regards to the time and sources wanted to undertake a weeklong trial on the courthouse; denying or granting a gun buy can take a minute or two. They might, nonetheless, fear in regards to the backlash in the event that they approve a gun buy for a serial killer or somebody who goes on a capturing spree in a faculty. After which there are the courts, which often get entangled solely when somebody is arrested and charged with against the law, and they’re considering not solely about constitutional points just like the Second Modification, however how broadly to interpret ambiguous phrases like “person” that seem in statutes. All legal guidelines embody no less than a couple of phrases which have some ambiguity, or that may imply various things in numerous context (consuming a “substantial” quantity of your dinner is totally different than having “substantial” actual property holdings in your funding portfolio). 

Within the case of this statute, courts determined early on that “person” meant some type of repeated or ongoing use; from the outset, courts rejected the concept somebody may face jail time for proudly owning a gun of their 50’s in the event that they tried marijuana as soon as after they had been 18.  Prosecutors naturally tailored to the courts’ view, and ultimately (in 1997) ATF adopted an interpretation within the type of a regulation that it will deem somebody to be a “person” if that they had a drug conviction within the final 5 years, or an arrest within the final yr, or a confession or failed drug take a look at within the final yr. 

Most individuals don’t get arrested or convicted the primary and solely time they experimented with a managed substance. It may occur, but it surely looks like that have to be uncommon. ATF’s inference mirrored an assumption, which most likely appeared cheap on the time, that folks with drug convictions had been utilizing medicine commonly and ultimately had been caught, and that folks caught utilizing medicine within the final yr (by way of arrests, confessions, or failed drug checks) had been most likely utilizing medicine on a repeated foundation pretty not too long ago. 

To provide an instance, suppose a person makes use of cocaine a few times a month when they’re at events or nightclubs.  We may debate about whether or not cocaine use twice a month makes somebody a “person,” but when it does, the particular person is prohibited from proudly owning a gun beneath the statute. Nonetheless, our biweekly leisure cocaine person will nonetheless cross a background verify and be capable of buy a gun from a supplier, except their identify was someway entered into the NICS database. How would the federal government know he makes use of cocaine, except he has been investigated by the police? Now, assume his identify is within the NICS database, maybe as a result of he’s a federal agent who has to take common drug checks, and he failed a drug take a look at. He can’t purchase a gun from a licensed supplier, however he may already personal weapons from earlier than his drug take a look at, or he may purchase one from a non-public unlicensed vendor. Will he be charged with against the law? Not except he’s caught, and legislation enforcement determines he’s each a daily cocaine person and a gun proprietor. That is unlikely to occur except he’s investigated for another crime or incident. But when caught, he is perhaps prosecuted. Possibly not–if there are not any different costs moreover § 922(g)(3), the longstanding follow of the U.S. Legal professional’s Workplace was to supply a deferred prosecution deal, the place the person agrees to some phrases (like abstaining from medicine and weapons, and perhaps resigning from their authorities job) in trade for not getting a felony conviction. It’s like a contract that places the case in suspended animation indefinitely. It’s the identical legislation, with the identical phrases, however the utility of it’s reasonably fluid in numerous real-life conditions. 

A last notice: “failing a drug take a look at” means a failed drug take a look at that’s really reported to, and recorded in, the NICS database. The overwhelming majority of drug checks are administered by personal employers, coaches, and so forth, and these are not reported. The reported drug take a look at failures are nearly solely from legislation enforcement businesses (state and federal), the army, and workers at a couple of different federal businesses or federal contractors. 

What prompted ATF to revise its interpretation? 

Its said purpose, which is believable, is that within the final a number of years, courts have bristled on the “single incident” interpretation (a single arrest, confession, or failed drug take a look at within the final yr), each for individuals being charged with crimes and for background verify denials of gun purchases, within the uncommon instances that such denials are litigated. Courts wished extra proof of repeated, ongoing use. Prosecutors and federal enforcement officers had tailored alongside comparable traces. The NICS system was out of sync. 

There’s one other issue which will have given particular urgency to the difficulty: the Supreme Courtroom will quickly hear a case difficult the legislation itself. If the NICS strategy to the statute appears unreasonable to the Courtroom, or looks like it stretches the statutory language too far, that might make the statute itself appear extra problematic and indefensible. 

Congress expressly gave the Legal professional Basic authority to promulgate guidelines like these with working interpretations or definitions of phrases in statutes like 18 U.S.C. § 926(a).  To provide latest high-profile examples, final summer time the Supreme Courtroom upheld an ATF interpretation-rule about “ghost weapons” (actually about serial numbers on frames and receivers) in VanDerStok v. Bondi (2025), however struck down an ATF interpretation-rule about bump shares in Garland v. Cargill (2024), as a result of within the latter case, the bulk thought the interpretation strained the that means of the unique statutory verbiage it presupposed to interpret. (I don’t need to delve into particulars about administrative legislation right here, however an “Interim Remaining Rule” is merely a procedural path that enables businesses to make guidelines that take impact instantly, even whereas the general public remark interval on the rule remains to be open).

The Shift from Inferences to Patterns

The core of the IFR is the rescission of the “single-incident inference.” Since 1997, the ATF has operated beneath a regulatory interpretation {that a} single drug-related occasion—a conviction, a optimistic take a look at, or an admission of use throughout the previous yr—was adequate to label somebody a prohibited “person” beneath 18 U.S.C. § 922(g)(3).  An extended look-back interval of 5 years applies for precise convictions of drug offenses. As defined above, the single-incident inference was not adopted by ATF or DOJ enforcement places of work, or the courts, but it surely remained on the books because the official interpretation, and the NICS background checks had been nonetheless following it for issuing denials. 

The brand new rule replaces this bright-line rule with a extra case-by-case “sample of use” commonplace. To be prohibited now, a person should commonly use a managed substance over an prolonged interval persevering with into the current. The revised commonplace for “prohibited” will principally influence the NICS system. This aligns the ATF’s inner enforcement manuals with a rising physique of appellate case legislation—and, maybe extra importantly, with the Supreme Courtroom’s looming resolution in United States v. Hemani.

There is a vital caveat about abandoning the only “admission of use.”  Think about a state of affairs the place somebody is interviewed in relation to a prison investigation. They might be a suspect, or the sufferer of the crime, or an eyewitness. People in any of those three classes may admit that they had been excessive on the time of the incident beneath investigation. If recorded in NICS, that counts as a single incident for denying the background verify. Observe, nonetheless, that if certainly one of these people admits to being a common, ongoing person of medicine (“Look, I prefer to get excessive each weekend, okay?”), that’s not a “single incident,” however is the kind of proof that might fulfill most courts and prosecutors that the particular person is a “person” for functions of the statute. 

The 4,000-Particular person Mirage

In its influence evaluation, the ATF highlights roughly 4,284 “commonplace denials” in FY 2025 that had been based mostly on single-use inferences. The company suggests comparable people would be the main beneficiaries of the rule. Nonetheless, as any NICS researcher is aware of, these numbers are sometimes misleading.

First, NICS statistics observe transactions, not distinctive people. A single particular person denied at three totally different outlets in a yr seems 3 times in that 4,284 determine. Second, the recency downside stays. If a single drug-related file may be very latest, a NICS examiner should discover it constitutes proof of present use contemporaneous to the acquisition. We’re primarily buying and selling a 12-month bright-line rule for a case-by-case discretion which will lead to the identical consequence for a lot of candidates.

As well as, if investigator practices evolve in order that extra of the recorded “admissions” are framed as ongoing ordinary utilization reasonably than drug use on the day of the incident, that might offset the impact of the brand new rule. If legislation enforcement, the army, or different federal businesses resolve to manage worker drug checks extra ceaselessly, statistically there will likely be extra data of failed drug checks. Keep in mind that beneath the brand new rule, one admission or failed drug take a look at may not be sufficient, however two admissions or failed drug checks in latest months may suffice, as may multiple arrest for misdemeanor drug costs. 

One other misunderstanding a reader may glean from the brand new rule is that these 4000+ people whose purchases had been denied in 2025 had been unable to acquire a firearm for private self-defense. There’s a large secondary marketplace for used firearms that bypasses the background verify system in most states. Within the majority of states that don’t require common background checks for personal gross sales, an individual with a latest drug conviction can nonetheless simply stroll away from a flea market or a “kitchen desk” transaction with a firearm. Even for individuals who are denied at a retail counter, an unknown proportion already personal firearms and are merely in search of to develop their assortment. 

Conclusion: Administrative Realism, Not Revolution

The ATF’s transfer is a smart piece of administrative housekeeping. It modernizes the language of the Gun Management Act to match the fact of Twenty first-century drug coverage and present judicial skepticism towards everlasting disarming for previous, remoted conduct. On the similar time, we ought to be skeptical of claims that this may result in a surge in newly authorized gun homeowners. Between the persistence of discretionary denials for latest or repeated use, and the large loopholes within the secondary market, the IFR is much less a revolution in gun rights and extra of a quiet retreat from a authorized place the federal government knew it may not defend in courtroom.