Medical Marijuana Patients and the Second Amendment

“Does being a medical marijuana patient affect my right to bear arms?” The simple answer to this is simply, “Yes”. As cannabis (the natural version of it, anyway) is federally illegal, medical marijuana patients are thought to be utilizing – or more likely to utilize – an illicit substance. This means that medical marijuana users cannot legally buy firearms . This ruling was made by the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives in 2011, after S. Rowan Wilson of Nevada tried to buy a firearm at the gun store, but was refused due to the fact that she had a medical marijuana card.

S. Rowan Wilson challenged the decision, but ruling was made official by a 3-0 decision in 2011 by the 9th U.S. Circuit Court of Appeals, which determined that prohibiting the sale of firearms to medical marijuana card holders is not a breach of their second amendment rights. The 9th U.S. Circuit Court of Appeals has appellate jurisdiction in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, the District of Guam and the Northern Mariana Islands.

Apra Harbor Guam
Apra Harbor, Guam

Whilst the Ninth Circuit does not hold any jurisdiction over other states, this does not mean other states do not have similar restrictions. Florida has recently ruled similarly, and federal law supersedes state law, regardless of what the individual state has in written in its law books regarding medical marijuana patients. Buying a firearm from a federally licensed firearms dealer requires the execution of ATF Form 4473 (a firearms transaction record). The 2016 revisions of these forms have a statement warning that cannabis use is illegal under federal law, essentially saying that “If you use cannabis, whether recreationally or medically, you cannot purchase a firearm.” The exact statement reads:

“The use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medicinal or recreational purposes in the state where you reside.” (P.1, Q. 11e., ATF Form 4473)

ATF Form 4473; gun licensing; mmj patient rights; second amendment.
Revised ATF Form 4473. Picture from https://www.atf.gov/firearms/atf-form-4473-firearms-transaction-record-revisions

Essentially, this means that, even if you’re in a state where cannabis is legal for recreational and/or medical use, you technically cannot own a firearm, even if you have appropriate licensing for both. Having a valid medical marijuana card pretty much “invalidates” any firearms licensing you may have. Whilst this may be somewhat easier to control for when it comes to medical marijuana patients (which seems to make a mockery of the term “medical privacy”, and I am not sure how the authorities wiggle their way around this one), how this is to be policed in states where cannabis is legal for recreational purchase remains to be seen. It would seem that, in order to catch a cannabis enthusiast with a firearm, they’d probably have to be using cannabis whilst carrying a firearm at the same time. Another issue is if the patient has any charges on their criminal record, meaning they could be refused the sale of firearms. Of course, in some cases this is understandable, but it is also not too much of a stretch to think of situations where otherwise peaceful, law-abiding medical cannabis patients have been railroaded by the justice system.

Picture by Gordon Johnson (user GDJ). Picture from https://pixabay.com/en/cannabis-hemp-leaf-marijuana-plant-1254745/

Alternatively, it could mean having to give firearms owners regular drug tests – something that doesn’t look to be happening any time soon. Another alternative – and this seems probably most likely (and quite scary) – is that those growing their own, legal number of plants may be prosecuted if they have a firearm on their property as well. “But what if I have a gun license before I got my MMJ card? Does the medical marijuana card invalidate my gun license?” Sadly, I don’t know for sure, but it does seem that it would. However, how the authorities can see whether or not this is the case, I do not know unless they catch you with possessing both cannabis and a gun at the same time. Alternatively, as both pieces of information can be found out by police officers, it may not necessarily make adding 2 and 2 together so difficult. Again, if law enforcement has such access, it does seem to make the idea of “patient privacy” ring a little hollow. Ultimately, for patients, this means one thing: for now, you must choose between your medical marijuana card or your second amendment rights.

 

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