With the decriminalization of recreational cannabis in many states and medical cannabis usage well-established around the U.S., more people are wondering about how it affects their gun ownership rights.
Why would gun ownership rights be affected by whether you use cannabis?
It’s a good question – and the answer relates to federal law prohibiting “unlawful users” of a controlled substance from owning a gun. This may come directly into conflict with the changing state laws.
So, what happens when someone who is using cannabis legally under state rules applies for a concealed weapons permit?
Similarly, can getting a medical marijuana card and using cannabis legally for medical purposes under the state’s laws mean you lose your right to have a concealed weapons permit?
According to federal regulations, cannabis has a Schedule I classification under the Controlled Substances Act. This has not been changed even as the states scramble to change the cannabis laws.
So, with this classification in place and gun ownership controlled largely through the federal firearms licensee system, state and federal laws may create problems for potential and existing gun owners.
The matter is sometimes complicated by agency opinions, such as the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) or the Drug Enforcement Agency (DEA).
The complex legal issues at play can be tough to get your head around but let’s try to simplify matters a little…
What does the Gun Control Act say?
Schedule 1 substances in the federal Controlled Substances Act are those with:
“a high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use under medical supervision.”
It may seem incredible to readers that cannabis is classified as such even with all the evidence out there. Regardless, under federal law, cannabis is treated the same as heroin.
As hard as that may be to get your head around, we need to understand that until the federal government changes the classification, anyone who possesses both cannabis and a firearm is breaking federal law under 18 U.S.C. § 922(d), which is also known as The Gun Control Act.
This states the following:
It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person—
(1) is under indictment for, or has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
(2) is a fugitive from justice;
(3) is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802));
What does the ATF say?
In 2011, the ATF released regulatory guidance for how the Gun Control Act should interact with state laws that legalize cannabis.
In this document, federal firearms licensees are reminded that marijuana is a Schedule I controlled substance with “no exceptions in Federal law for… medicinal purposes, even if such use is sanctioned by State law.” So, cannabis use qualifies an individual under federal law as an “unlawful user” even if state law says otherwise
The ATF, therefore, expects that if a federal firearms licensee is aware that a buyer has a card for medical cannabis usage, he or she has reasonable cause to believe the buyer is an unlawful user of a controlled substance and must deny the firearm sale.
With over 30 states legalizing medical cannabis usage since 1996 and many more decriminalizing its usage or paving the way for recreational cannabis use, the laws are outdated and set for a collision course unless something changes soon.
This conflict has also involved the US Department of Justice, with several interventions on the matter in recent years.
Individual state statutes
Individual state statutes must be examined to understand where you may stand, depending on your location. State concealed weapons licensing schemes are typically divided into two categories:
- “Shall issue” states: the licensing agency MUST issue a permit unless the applicant is disqualified under statute (this covers the majority of states in the U.S.)
- “May issue” states: the licensing entity CAN issue a permit if the applicant meets certain requirements.
With “may issue” states, legal challenges and issues regarding cannabis usage and firearms licenses are far fewer because the state can exercise a broad amount of discretion. Most of the problems originate in “shall issue” states. Here, many different statutory requirements may be used to deny a gun ownership application.
This is a complex topic that is too broad to be discussed here. It may be a job for your cannabis lawyer to investigate.
Gun permits/licenses for lawful cannabis users
In many states that have legalized cannabis to some degree, there is a growing reluctance to prosecute individuals for the possession of cannabis and firearms, even though it is still technically breaking federal law.
If aggravating factors are present to indicate dealing in cannabis and firearms offenses, the federal prosecutors are more likely to step in.
In some states, interesting situations arise when state laws require that concealed gun licenses are issued without regard to whether the applicants use medical cannabis.
For instance, in a case in Oregon, the court ruled that sheriffs could not deny concealed handgun licenses to medical marijuana registrants but they were free to arrest those registrants if they possess a handgun!
A more recent example in Ohio involved a gun owner with PTSD who wanted to register for the state’s medical cannabis program. He claimed that he was prevented from doing so by the Gun Control Act, which violated his Second Amendment rights and the Equal Protection clause.
The court rejected his claims because he faced no “imminent threat of prosecution”, considered his Second Amendment claim implausible, and had alternative legal means to obtain and possess firearms rather than through a federal firearms licensee.
The court’s ruling recognized the plaintiff’s right to bear arms under the Second Amendment and that it had been infringed but ruled that the government had a right to infringe upon it!
You can see how complex this issue is. For informed legal advice about cannabis usage and gun ownership anywhere in the U.S., call 866-329-0729 for a consultation with a knowledgeable cannabis attorney at Cannabis Law Solutions.