The Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) posted a proposed rule on the Federal Register seeking to redefine what constitutes an unlawful drug user for the purpose of the Gun Control Act.
Specifically, the proposed rule, titled “Revising Definition of “Unlawful User of or Addicted to Controlled Substance” would amend Department of Justice (DOJ) “regulations to update the definition of ‘unlawful user of or addicted to any controlled substance,’ a category of persons who may not possess firearms under federal law. This definition was established in 1996 to facilitate operation of the National Instant Criminal Background Check System. Since then, court decisions and ATF internal guidance have evolved to include recurring use as a factor. As a result, ATF is aligning the definition with the best statutory understanding, as informed by judicial decisions.”
This interim final rule became effective on January 22, 2026. According to the DOJ, comments must be submitted in writing, and must be submitted on or before (or, if mailed, must be postmarked on or before) June 30, 2026.
To comment on this proposed change, citizens can use the federal portal (https://www.regulations.gov) or they can mail a letter to “ATF Rulemaking Comments; Mail Stop 6N-518, Office of Regulatory Affairs; Enforcement Programs and Services; Bureau of Alcohol, Tobacco, Firearms, and Explosives; 99 New York Ave. NE, Washington, DC 20226; ATTN: RIN 1140-AB03.”
As background the DOJ offers this history (shown here without footnotes):
The Attorney General is responsible for enforcing the Gun Control Act of 1968 (“GCA”), as amended. This responsibility includes the authority to promulgate regulations necessary to enforce the provisions of the GCA. Congress and the Attorney General delegated the responsibility for administering and enforcing the GCA to the Director of ATF (“Director”), subject to the direction of the Attorney General and the Deputy Attorney General. Accordingly, the Department and ATF have promulgated regulations to implement the GCA.
The GCA states that it is unlawful for any person who is an unlawful user of or addicted to any controlled substance to ship, transport, possess, or receive any firearm that has moved through interstate or foreign commerce. In other words, persons who are unlawful users of or addicted to a controlled substance constitute one category of what are commonly referred to as “prohibited” persons in the context of firearms. The plain language of the text indicates that the person must be a current unlawful user of a controlled substance, contemporaneous to possessing the firearm.
After the GCA was passed in 1968, federal courts addressed the meaning of “unlawful user” and recognized the distinction between “use” and “addiction.” One court observed that “the statute prohibits a person who is either an unlawful user of or addicted to a controlled substance from purchasing firearms.” Another court noted that if the defendant's use of heroin had been infrequent or in the distant past, the term “unlawful user” would be subject to a vagueness challenge.
ATF proposed a regulatory definition of unlawful user, together with other regulatory definitions on the prohibited person categories, in 1996 to facilitate operating the National Instant Criminal Background Check System (“NICS”), as required by the Brady Handgun Violence Prevention Act, Public Law 103-159 (1993). The definition of “unlawful user” utilized definitions from both the Americans with Disabilities Act, Public Law 101-336 (1990); and the Controlled Substances Act, Public Law 91-513 (1970), and the proposed rule included some of the current regulations' factual examples that give rise to an inference of being an unlawful user.
Thereafter, in June 1997, ATF published implementing regulations, further defining the term “unlawful user of or addicted to any controlled substance” to provide more clarity. The regulatory definition first clarified that the two prongs of the definition consist of (1) persons who use a controlled substance and have “lost the power of self-control with reference to the use” of the substance, and (2) persons who are “current user[s]” of a controlled substance “in a manner other than as prescribed by a licensed physician.” The definition then clarified the temporal component by stating that “use” of the controlled substance is not limited to a particular day or within a matter of days or weeks before shipping, transporting, receiving, or possessing a firearm, but rather that “the unlawful use has occurred recently enough to indicate that the individual is actively engaged in such conduct” and that the person can be an unlawful current user even if the substance is “not being used at the precise time the person seeks to acquire a firearm or receives or possesses a firearm.” The regulation further clarified that inferences of “current use” may arise from “evidence of a recent use or possession” of the substance or “a pattern of use or possession that reasonably covers the present time” and provided examples from which a person may draw an inference of current use, including:
- a conviction for use or possession within the past year;
- multiple arrests for such offenses within the past five years if the most recent arrest occurred within the past year;
- a drug test finding the person used a controlled substance unlawfully, provided the test was within the past year; or
- for current or former Armed Forces members, a recent disciplinary or other administrative action based on confirmed drug use (including a court-martial conviction, non-judicial punishment, or administrative discharge based on drug use or rehabilitation failure).
The 1997 final rule added factual examples supporting an inference of current use, as recommended by certain Department components other than ATF, as well as the Department of Defense. These additions included inferences based on a positive drug test within the past year and military nonjudicial or administrative actions based on drug use—both of which could result from a single unlawful use. The regulatory definition thus described what ATF at the time understood the term “unlawful user” to mean and, as relevant here, it included an understanding that a single incident of unlawful use could make a person an “unlawful user.”
Thereafter, without exception, federal courts in the early 2000s agreed that, to put defendants on notice that they are unlawful users pursuant to the GCA, “one must be an unlawful user at or about the time he or she possessed the firearm and that to be an unlawful user, one needed to have engaged in regular use over a period of time proximate to or contemporaneous with the possession of the firearm.” Under this analysis, federal courts consistently upheld convictions in which there was evidence that an individual used controlled substances on a regular basis, establishing a pattern of use.
For more, follow the link to the ATF’s proposed final rule.
