Is it Illegal for Medical Marijuana Patients to Possess Firearms?

Possessing a firearm for self-defense purposes is at the core of our Second Amendment rights.  But do you lose your right to bear arms if you’re lawfully using medical marijuana?  The answer appears to be “yes.”  A number of friends have posed this question to me recently over a few separate occasions, so I thought I’d write this post along the lines of a PSA and to help make sure we’re all aware of the law (and of your potential exposure!).

The Second Amendment is well known.  In a nutshell, it gives law-abiding citizens the right to possess firearms for legitimate self-defense purposes.  There are limitations on this right, however, and some people are considered “prohibited persons” under federal law, and they are not allowed to possess firearms or ammunition.  The most well-known example of this is convicted felons losing their gun rights.  This is all found at 18 USC s. 922.  Addressing prohibited persons, spelled out in subsection (g)(3), the federal law states that

it “shall be unlawful for any person…who is an unlawful user of…any controlled substance…to…possess…any firearm or ammunition.”

Are you an “unlawful user” of a “controlled substance” if you’re lawfully using medical marijuana in connection with Florida’s laws?  Apparently, yes.  The ATF issued an open letter to all gun dealers dishing out bad news for medical marijuana users on September 21, 2011.  Basically, in this guidance letter, the ATF tells gun dealers that they’re prohibited from selling guns to unlawful users of controlled substances, and the fact that someone has a marijuana card is evidence of current unlawful use.  Marijuana is still considered a controlled substance according to the federal list of illegal drugs.  So no guns for medical marijuana users.

How this unfolds in the real world is usually like this:  a Floridian with a medical marijuana card goes into a gun store, and, of course, has to fill out the ATF Form 4473 (it’s the form that every gun dealer is required to collect for the ATF in connection with any dealer-involved gun sale).

Question 11(e) of Form 4473 explicitly asks whether you’re an unlawful user of any controlled substance, and even now spells out that this means medical marijuana.  The purchaser is then faced with a dilemma: lie on the form and commit a federal felony (not advisable) or be truthful and almost certainly be denied the ability to purchase the gun.

What about the fact that Florida’s concealed carry application makes absolutely no mention of any of this?  You would think that it might keep pace with the federal rules, but it does not:  Florida’s concealed carry application has a number of “knockout” questions – but whether you currently use medical marijuana (or any drug) is not one of them.  So it’s entirely possible that you could be a carry-permit holder, completely legal within Florida’s laws, but still be potentially subject to a federal prosecution for mere possession of a gun (in your home or under any circumstance) because of how the federal statute is worded.  A lot of people think that this doesn’t make sense.

Lastly, some of you clever folks out there might be wondering whether you can get around this by getting your firearms through private sales, rather than from a dealer.  It’s true: there’s nothing illegal about one private individual selling a firearm to another (as long as the seller is not actually in the gun trade and doesn’t have any reason to believe the buyer is a prohibited person).  This can get you around your 4473 problem but does nothing to change the fact that a medical marijuana user is the functional equivalent of a felon as far as being a “prohibited person” in the eyes of 18 USC 922(g).  Without regard to how you procured the firearm, your possession of it is still illegal under federal law.

Think this should be challenged in court?  It’s been done.  In a 2016 ruling by the Ninth Circuit Court of appeals (which sits over nine western states), the court ruled that this gun ban on medical marijuana users was constitutionally permissible.  Should another federal appellate court disagree with the Ninth Circuit, the Supreme Court could potentially take the matter up, but obviously that’s not a currently pending issue.

This issue has made national news, and has been the subject of controversy in Florida as well.  One publication out of Miami noted that Florida “has the highest number of concealed weapons permit-holders in the country and more than 200,000 medical marijuana patients.”  And, recently, the commissioner of Florida’s Department of Agriculture and Consumer Services went on record stating that, at least, being a medical marijuana user will not be a subject of inquiry on the Florida application for a concealed weapons permit, to the applause of at least one pro-marijuana group.

For now, all I can do is to help you be aware: federal laws and Florida’s laws appear to be at loggerheads.  Florida law currently does not outlaw a medical marijuana user from being a carry-permit holder or from possessing firearms in general.  But the federal law does.  Unless and until that changes, Florida medical marijuana users apparently have to choose between their treatment and their gun rights.  Better to know your exposure to the laws than to get arrested for a federal felony!  Stay safe out there, folks.

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