Medical Cannabis and Your Second Amendment Right to Bare Arms

Under our current legal system, medical marijuana and guns do not mix. This was made very clear in a Federal Appeals Court ruling last year, which decided not to extend 2nd Amendment gun rights to medical marijuana patients.

This stems from a case originating in October of 2011, when Rowan Wilson made an unsuccessful attempt at purchasing a gun from a Nevada firearms shop. The shop refused the sale, stating that they were prohibited under the law from doing so, the dealer knowing Wilson possessed a medical marijuana license, had to consider her an “unlawful drug user” under the Bureau of Alcohol Tobacco and Firearms (“ATF”) regulations.

Looking at federal firearms statutes, under 18 U.S.C. § 922(g)(3) no person “who is an unlawful user of or addicted to any controlled substance” may “possess... or… receive any firearm or ammunition.” In addition, it is 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… is an unlawful user of or addicted to any controlled substance.” Id. § 922(d)(3).

In September of 2011, ATF, the agency charged with enforcing gun laws, issued an Open Letter to all federal firearms licensees which stated the following:

[A]ny 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… and you may not transfer firearms or ammunition to them. Further, 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…

Applying the federal statute and the ATF directive, the Nevada dealer was prohibited from selling a gun to Wilson, and Wilson was prohibited from making a purchase. Wilson subsequently sued the Federal government, challenging the statute, ATF regulations, and the ATF Open Letter as unconstitutional infringements on her 2nd Amendment right to bear arms.

Ultimately, the 9th Circuit Court of Appeals ruled in favor of the Federal government, and in doing so, limited the rights of medical marijuana license holders to own or purchase a gun. In Wilson’s case, the court used a two-prong test to determine the constitutionality of the challenged laws. First, the court looked to whether the government’s stated objective is significant, substantial, or important. Then, it examined if there is a reasonable fit between the challenged regulation and its asserted objective.

The government’s objective in the firearms regulations was for public safety and the prevention of gun violence – long established as an important government interest. Secondly, the court determined that there was a reasonable fit between prohibiting illegal drug users from obtaining guns, and the objective of preventing gun violence.

The court determined that individuals who firearms dealers have reasonable cause to believe are illegal drug users are more likely actually to be illegal drug users (who, in turn, are more likely to be involved with violent crimes). With respect to marijuana cardholders, it is reasonable for federal regulators to assume that such a cardholder is much more likely to be a marijuana user than an individual who does not hold a registry card.

These laws will sometimes burden (albeit minimally and only incidentally) the Second Amendment rights of individuals who are reasonably, but erroneously, suspected of being unlawful drug users. However, the Constitution tolerates these modest collateral burdens in various contexts, and does so here as well.

What does this all mean for medical marijuana patients? The federal government sees you as an illegal drug user, and indeed, under federal law, marijuana (medical or otherwise) is an illegal Schedule I substance. Although the majority of states to date have passed some form of marijuana policy reform, it has fallen on the federal government’s deaf ears. And until marijuana is descheduled or rescheduled, medical marijuana patients will continue to have their Constitutional rights limited when it comes to gun ownership.

Alex Pe is an attorney based in Baltimore, Maryland. Former general counsel for Medical Marijuana Advocates Group, he concentrated his practice in marijuana policy, licensing, and compliance. His firm, Hensley Pe Law represents clients on a range of issues, from business matters, civil litigation, immigration and criminal defense.

This article isn’t meant to be construed as legal advice and is for informational purposes only. If you need to seek legal counsel and/or require representation on a certain matter, feel free to contact us for a for a free consultation.