Reprint from Can I Become a Medical Marijuana Patient If I Own a Gun? (wayofleaf.com) Written by Patrick Lynch, M.A.
A growing number of American states have introduced medical marijuana programs. A recent Gallup Poll found that over 70% of Americans are now in favor of legalized cannabis.
The U.S. is also known for the high number of guns owned by the population. The Second Amendment ensures that in most cases, citizens are legally permitted to bear arms. However, many people don’t seem to realize that medical marijuana and gun laws clash. This article explores whether you can own a firearm if you have an MMJ card.
The Current Legal Status of Medical Marijuana
Although many states have legalized medical marijuana, it remains a Schedule I controlled substance. This means it is still illegal at the federal level. The DEA defines a Schedule I substance as having “a high potential for abuse and little or no medicinal value.”
Because of its Schedule I status, the DEA classifies anyone who uses marijuana as an ‘unlawful user.’
In recent years, marijuana supporters have repeatedly called for the reclassification of the drug. Recent advances mean marijuana might soon get removed from the Schedule I list. However, for now, it remains firmly in place alongside harder narcotics such as heroin, LSD, and MDMA. Interestingly, industrial hemp is no longer tied in with cannabis. The 2018 Farm Bill legalized hemp cultivation with a maximum THC content of 0.3% by dry weight.
Because of its Schedule I status, the DEA classifies anyone who uses marijuana as an ‘unlawful user.’ This is the case even if you live in a ‘legal’ cannabis state.
What Does the Law Say About Medical Marijuana and Guns?
Anyone wishing to purchase a gun from a licensed seller must complete a Firearms Transaction Record (Form). You receive it from the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF).
Section 11.e of this form asks you to disclose whether you unlawfully use marijuana or other controlled substances. Then it clarifies that marijuana possession remains federally illegal, regardless of the laws of your state. Filling in this form incorrectly or untruthfully is classed as perjury. This is a felony punishable by up to ten years in prison.
The ATF confirmed its stance on guns and marijuana in 2011 when it issued an open letter to all firearms dealers. The letter reiterated that anyone known or suspected to be an “unlawful user of or addicted to any controlled substance” is not allowed to purchase or possess a firearm or ammunition.
For clarification purposes, both the Gun Control Act of 1968 and United States Code Title 18, Section 922(g) are against you. The 1968 law states that you are not allowed to possess a gun if you use or are addicted to marijuana.
The ATF has made the law on the subject of cannabis and guns quite clear to both dealers and buyers alike. However, not everyone accepted it.
The Case of Wilson vs. Lynch
Shortly after the ATF issued its open letter, Nevada resident S. Rowan Wilson decided to purchase a gun for self-defense. However, when she visited her local firearms dealer Loretta E. Lynch, she was promptly turned down. Lynch knew that Wilson was a medical marijuana cardholder and, naturally, wanted to comply with the law.
Wilson was unhappy about this and decided to file a lawsuit against Lynch. She claimed that the refusal violated her Second Amendment rights (among others). The case was dismissed, but Wilson did not give up. The case finally reached the U.S. Court of Appeals for the Ninth Circuit after two failed appeals.
Ultimately, in August 2016, Chief District Judge Gloria Navarro ruled that a federal government ban on gun sales to legal MMJ patients wasn’t in violation of the Second Amendment.
However, the ruling in the Wilson vs. Lynch case doesn’t necessarily close the door on MMJ patients looking to buy firearms. When it comes to purchasing guns, each state has a different rule. While some states require background checks, others, like Georgia, make it incredibly easy. In the Peach State, you can buy a gun with no fuss and no background check.
Federal law is clear that licensed firearms dealers must perform a background check on anyone purchasing a gun. However, gun shows are filled with unlicensed sellers who don’t have to conduct any background check. Over one-fifth of all gun sales involve unlicensed dealers. The following states have acted to close this loophole by forcing background checks at the point of sale:
- New York
- Rhode Island
- Washington, D.C.
In Maryland and Pennsylvania, you can only purchase handguns.
There are another eight states where a permit for private buyers is required along with the background check:
- New Jersey
- North Carolina
In Iowa, Michigan, Nebraska, and North Carolina, you can only get handguns.
Can You Buy a Gun if You Have a Medical Card?
Legally, the answer is ‘no,’ and you will get into trouble with law enforcement if you purchase a firearm while you have an MMJ card.
However, MMJ patients can have a firearm in their home if their spouse isn’t a marijuana user. In this case, your spouse would need to buy the gun and lock it away to ensure you don’t have access to it. Whether the ATF could ever prove that you can or can’t access a weapon in your own home is another story.
You’re potentially in luck if you live in a state where recreational cannabis is legal. As long as you don’t have a marijuana-related charge on your record, you can legally purchase cannabis, then visit your local gun shop. There, you can tick ‘no’ to the question that asks if you’re an unlawful user of, or addicted to, any controlled substance.
In this situation, you would only face legal issues if caught in possession of cannabis and a gun. Or, if you have a firearm while around known marijuana users or producers.
The law is also confusing if you apply for an MMJ card and already own a gun. You can’t buy any more firearms, but there’s also no clear guidance on what to do with your weapon. Giving it up once you have the card could leave you open to prosecution for using marijuana around your firearms!
It is also important to note that you can buy a gun once your MMJ card expires.
The Full Disclosure – Catch 22
The ATF added a warning to the Firearms Transaction Record after the conclusion of the Wilson vs. Lynch case. Form 4473 amended the question relating to whether the applicant uses cannabis or is addicted to it. The warning states that the use or possession of cannabis is federally illegal irrespective of whether your state has legalized it recreationally or medicinally.
If you say ‘yes’ to the question, you’re ineligible to own a gun under federal law. If you have an MMJ card and say ‘no,’ you’ve just committed perjury, which is a felony. Yet, the law is only applicable if gun sellers perform a background check. As many people are aware, firearm purchasing regulations are often lax.
If the police pull you over and you have a firearm and cannabis in the car, legal experts say you should not admit it. There is no obligation to disclose the information. Instead, ask for your attorney. However, if the law enforcement official has probable cause, they can search your vehicle.
Does Marijuana Cause Violent Crime?
In the Wilson vs. Lynch case, the judge reached her decision due to an earlier ruling (from the United States vs. Dugan). This case ruled that unlawful drug users did not retain their Second Amendment rights. The appeal panel justified their decision further, citing the government’s priorities of preventing violent crime.
Unfortunately, despite a growing acceptance of cannabis and its potential benefits, many people associate the drug with an increased risk of violent crime.
Cannabis has had a bad reputation since its prohibition and demonization in the early 1900s. Those who still oppose the substance claim it increases the risk of violent or aggressive behavior. They also say that marijuana is a ‘gateway drug’ to more harmful substances.
Most users find it challenging to reconcile this image with their lifestyles. The vast majority of those who use cannabis do so to relax rather than embark on a drug-fueled crime spree!
Is There Proof?
Of course, there are always exceptions, and one common example is cannabis use and gangs. Gang members are often involved in violent crime and may also use marijuana or other illegal substances. However, is cannabis responsible for these crimes, or is the link just a coincidence?
When it comes to finding research on whether marijuana leads to violence, the evidence is as mixed as people’s views on the drug itself. Some studies show that cannabis use can increase violence and aggression, especially among younger people. Others show no causal relationship between marijuana and violent crime.
Some researchers have suggested that crime might increase in states where cannabis is legal. Dispensaries and growers are apparent targets. However, preliminary investigations indicate that the opposite is true. Some places saw an overall reduction in crime following legalization. One possible explanation for this is better security in areas surrounding dispensaries.
While it is hard to say whether cannabis causes violence, we can say with some degree of certainty that alcohol misuse does. Let’s face it; nobody is going to stop you from owning a gun because you enjoy a few beers at the weekend!
How Strictly Are Concealed Carry Gun Laws & Medical Cannabis Card Laws Enforced?
If you use medical marijuana and try to buy a gun from a licensed seller, you will likely get turned down for admitting it. However, remember that over one-fifth of gun sales involve unlicensed dealers and no background check. An incredible half of all online sales and private sales at gun shows have no background check.
When you apply for your MMJ card, no one will ask if you own a gun. If you’re an MMJ cardholder looking for a gun, it is your decision whether to admit it or not. If you lie, you could go to prison if you’re caught. However, if you go to an unlicensed dealer, the chances of getting caught are slim.
If you’re an MMJ cardholder looking for a gun, it is your decision whether to admit it or not.
In the vast majority of instances, those who are turned down know the gun dealer. The seller knows that the prospective buyer is a medical marijuana patient. Many sellers want to avoid getting into trouble regarding gun laws, so they turn down the buyer.
The ATF can perform a background check on potential gun owners, but they’re not legally permitted to access the MMJ patient register. Effectively, the ATF relies on applicants’ honesty and the deterrent of a felony charge.
Can I Become a Medical Marijuana Patient and Own a Gun? Final Thoughts
If you’re a medical marijuana user, you’re technically breaking federal law, even if the substance is legal in your state. Being an ‘unlawful user’ means you are not permitted to purchase a firearm.
Anyone determined to own a gun and use cannabis despite this law will probably find a way to do so. There are still some unscrupulous sellers that allow you to buy a firearm without conducting a background check. If you already have a gun, you can probably get a medical marijuana card without too much hassle.
However, if you decide to take advantage of these loopholes and get caught, you are in trouble! A prison sentence for perjury is a possible penalty. This is not something we would recommend.
Unfortunately, it seems you have to choose between breaking the law or making a painful sacrifice. So, which would you rather keep, your gun or your medical marijuana card? Let us know in the comments below!