CAN I BUY A GUN AS A MEDICAL MARIJUANA CARD HOLDER?

image

January 6th, 2021 | By Chuck Franklin and Joshua Sene

While Arizona has passed Prop. 207, many clients are often confused with gun ownership for medical marijuana card holders on the federal level. As a gunowner, it is crucial to know how federal law treats marijuana card holders who want to also own guns.

This piece breaks down the law on both the state and federal level.

If A Medical Marijuana Card Holder Buys A Gun, Does That Violate Arizona Law?

At the state level—no. Arizona does not prohibit the sale of guns to registered medical marijuana card holders. Under Arizona law, “persons lawfully in possession or control of controlled substances” can possess a gun.

For a quick summary on state gun rights of medical marijuana cardholders, click here.

If A Medical Marijuana Card Holder Buys A Gun, Does That Violate Federal Law?

Likely yes. Federal law prohibits marijuana users from buying firearms. For more on federal gun rights of medical marijuana cardholders, click here.

Marijuana Is a Schedule I Controlled Substance

Under federal law, marijuana is classified as a Schedule I controlled substance under the Controlled Substance Act. As a Schedule I controlled substance, marijuana is deemed to have “no currently accepted medical use in treatment” and “there is a lack of accepted safety for use of the . . . substance under medical supervision”. 812(b)(1)(B) & (C)).

Because of marijuana’s Schedule I classification, it is illegal for anyone who is an “unlawful user of or addicted to any controlled substance” [to] “possess . . . or receive any firearm or ammunition”. 18 U.S.C. § 922(g)(3). It is also illegal for anyone “to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person . . . is an unlawful user of or addicted to any controlled substance”. 18 U.S.C. § 922(d)(3).

The ATF Disallows Gun Dealers From Selling To Marijuana Card Holders

The Bureau of Alcohol Tobacco and Firearms (ATF) has adopted the Controlled Substances Act and has implemented it into its own regulation. On September 21, 2011, the ATF issued an Open Letter to gun dealers that states the following:

“Any 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. . . . 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…”

Together, both the federal law and the ATF’s Open Letter work together to prohibit medical marijuana card holder from purchasing firearms.

9th Circuit Case Law Recently Held That Medical Marijuana Card Holders Could Not Purchase Firearms

The federal ban and the ATF’s Open Letter was recently challenged, but was upheld by the 9th Circuit Court of Appeals.

In 2011, a Nevada woman with a marijuana card sought to buy a gun from a local gunsmith in Moundhouse, Nevada. Wilson v. Lynch, 2016 WL 457376 (9th Cir. 2016). However, when the woman began filling out the 4473 Form, the gunsmith learned that the woman held a medical marijuana card as she filled out the Form. The dealer then refused to sell any firearms to her in light of the federal law and the ATF’s Open Letter.

The woman sued in federal district court, arguing that the federal ban, and the ATF Open Letter, violated her 2nd amendment rights. She also claimed a violation of freedom of speech under the 1st Amendment’s, a violation of due process under the 5th Amendment, and that the ATF’s Open Letter violated federal administration law.

The district court denied the woman’s claims, holding the 9th Circuit had previously upheld the federal ban on gun ownership by illegal drug users. The district Court cited to U.S. v. Dugan in its decision, holding that the 2nd Amendment did not protect the right of unlawful drug users to bear arms.

The woman appealed the district court’s decision to the 9th Circuit, but was also denied. In its opinion, the 9th Circuit first denied the woman’s 1st Amendment claim, noting the following:

“Registry cardholders are more likely to be marijuana users, and illegal drug users, including marijuana users, are more likely to be involved in violent crimes… Accordingly, preventing those individuals who firearm dealers know have registry cards from acquiring firearms furthers the Government’s interest in preventing gun violence.”

The Court then held that banning the woman from buying firearms did not violate her 2nd  Amendment freedom of speech because she could have surrendered her marijuana card before attempting to buy any firearms. Wilson at 6.

As for the woman’s due process claims under the 5th Amendment, the Court held that there was no violation because “there is no constitutionally protected liberty interest in simultaneously holding a registry card and purchasing a firearm.”

Lastly, the woman’s final APA Act violation, was also denied because, according to the Court, the ATF’s Open Letter only clarified the federal law, and did not create or expand the law. Wilson at 12.

The case of Wilson is important because many of the woman’s legal arguments and challenges are the same for most advocates who urge gun ownership for medical card users at the federal level. The 9th Circuit in Wilson denied each and every argument raised, making clear the federal law’s stance on gun purchases for medical marijuana card holders.

The Future Of Gun Ownership And Medical Marijuana Use Together Remains Uncertain

While there has been a push to decriminalize marijuana on the federal level, buying a gun as a marijuana card holder remains uncertain.

In December 4, 2020, the House of Representatives passed the MORE Act—a bill that would decriminalize marijuana on the federal level. This bill, if passed by the Senate, would remove the drug from the Controlled Substances Act, and give states the power to enact their own rules on the drug.

But, because the MORE Act was proposed mostly by social-justice minded Democrats, the GOP-controlled Senate would be unlikely to push the bill forward. There have been previously marijuana house bills that have passed, and were more modest than the MORE Act, yet went nowhere with the Senate.

Additionally, any serious talk of federal marijuana policy reform would likely need to wait until January, when President Biden takes office. This is not to say that the MORE Act is dead on arrival, but passing this bill through the Senate will take more time, adjustment, and support.

Last Minute Take Thoughts

Ultimately, though Arizona law allows citizens to both own a gun and lawfully possess controlled substances, federal law does not. Gunowners should think long and hard before they apply to use medical marijuana card. Federal law makes clear having both may result in federal firearms charges.

If you face federal firearm charges, or have questions about medical marijuana and gun ownership, call Chuck Franklin directly at (480) 545 – 0700. We would be happy to discuss your gun rights with you.

Protecting gun owners since 1987.

Share on facebook
Facebook
Share on google
Google+
Share on twitter
Twitter
Share on linkedin
LinkedIn
Share on pinterest
Pinterest