Many states now permit physicians to prescribe medical marijuana. Problem is, state laws that legalize marijuana for medical, or even recreational purposes, have no effect on existing federal law. Federal law still makes cannabis, even medical cannabis, a controlled substance and prohibits its use and possession.
This conflict between state and federal law creates an important issue for those who want to purchase or possess a firearm. The holder of a prescription to buy medical cannabis loses the right to buy, or even possess, a firearm. 18 U.S.C. § 922(g) prohibits people from possessing firearms, ammo and explosives, if they are “unlawful users of any controlled substance.” Moreover, a seller cannot transfer a firearm to someone known to be an unlawful user of a controlled substance.
While the Second Amendment recognizes an individual right to bear arms, that right is hardly unfettered. In 2008, the United States Supreme Court, in District of Columbia v. Heller, 554 U.S. 570 (2008), held that the right to bear arms, like the First Amendment, is not unlimited. The government can impose conditions on that right. For example, felons, fugitives from justice, illegal aliens, citizens who have renounced their citizenship, and the mentally-ill cannot purchase guns; guns can be barred from public assemblies and government buildings; and certain type of guns, such as machine guns, don’t enjoy Second Amendment protection at all. Along these same lines, it is permissible for the federal government to impose restrictions on unlawful users of controlled substances.
Many guns are transferred each year. If the transfer occurs through a federal firearms licensee, the buyer must fill out and sign a Form 4473 under penalty of perjury. Question 11(e) on this Form asks the applicant whether he or she is an unlawful user of a controlled substance. A buyer, with or without a medical marijuana prescription, who uses marijuana might believe themselves to be a lawful user because use of marijuana is lawful under state law, but that interpretation of the question is incorrect and could land the applicant in jail.
In an effort to clarify this issue, the government has thoughtfully provided new language at the tail end of question 11(e) in bold letters. “Warning: the use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized…in the state where you reside.” A prudent person should understand that this language eliminates all questions (and innocent defenses).
Similar language was sent to all federal firearms licensees in a letter dated September 21, 2011. There, the ATF stated:
[A]ny person who uses or is addicted to marijuana, regardless of whether his or her State has passed legislation authorizing marijuana use for medicinal purposes, is an unlawful user of or addicted to a controlled substance, and is prohibited by Federal Law from possessing firearms or ammunition. Such persons should answer “yes” to question 11.e. on ATF Form 4473 … and you may not transfer firearms or ammunition to them. Further, if you are aware that the potential transferee is in possession of a card authorizing the possession and use of marijuana under State law, then you have “reasonable cause to believe” that the person is an unlawful user of a controlled substance. As such, you may not transfer firearms or ammunition to the person, even if the person answered “no” to question 11.e. on ATF Form 4473.
Some transfers by-pass federal Form 4473, such as gifts. But even buyers and sellers who by-pass Form 4473 are required to comply with federal laws that prohibit an unlawful user of a controlled substance from acquiring, receiving, transporting or possessing a gun. If Dad knows that Junior smokes marijuana, Dad violates the law by giving Junior a gun.
Some of these issues have been put to the test in the Ninth Circuit Court of Appeals. In Wilson v. Lynch, 835 F.3d 1083 (9th Cir. 2016), a woman with a medical marijuana registry card issued by the State of Nevada was prohibited from buying a firearm, even without proof of actual use of the marijuana. Possession of the card was enough to disqualify her from buying a gun. The court left open the question of whether an applicant can keep a gun he or she owned before receiving a marijuana prescription, or whether the applicant can destroy the prescription and then buy a gun. These questions will have to await another case, but if a search of someone’s house turns up marijuana and a gun (or ammo) a federal law has likely been broken.
If you have questions about how the medical marijuana laws impact gun ownership, contact Jim Astrachan at 410-783-3550 (jastrachan@gdldlaw.com).
