Doug R. Sargent, Partner
On February 3, 2023, a federal judge in the Western District of Oklahoma issued an
order finding the prohibition against gun ownership by medical marijuana users to be unconstitutional. In the 54-page order, Judge Patrick R. Wyrick agreed with Defendant Jared Michael Harrison’s argument that the plain language of the Second Amendment protects his ability to possess a firearm, and the government could not prove that the restriction is consistent with the nation’s “historical tradition of firearm regulation.” Harrison’s argument—and the court’s analysis—heavily relied on last year’s United States Supreme Court decision in New York State Rifle & Pistol Association v. Bruen, which effectively eliminated the use of all “means-end” tests when deciding a Second Amendment challenge. Instead, the Court held that, when the plain text of the Second Amendment covers an individual’s conduct, the government must “affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms” in order to restrict firearm ownership. In the Harrison matter, the United States argued that there were historical laws aimed at preventing “presumptively risky” people like felons and the mentally ill from possessing firearms, but Judge Wyrick found the examples unavailing.
The United States will likely appeal this decision, and assuming it does, it will be interesting to see how the Tenth Circuit comes down. The Ninth Circuit previously held that medical marijuana holders’ Second Amendment rights were not violated by the gun ownership ban, but that decision was made before the Supreme Court established the new standard in
Bruen. In any event, the Harrison decision at least pushes gun ownership rights of medical marijuana users into a legal grey area.
Original Post: January 20, 2023
On January 13, 2023, Rep. Alex Mooney (R-WV) introduced
H.R. 363, which seeks to allow medical marijuana cardholders to legally purchase and possess firearms. Rep. Mooney filed the same bill before, but it was unsuccessful. To date, the bill has picked up four co-sponsors, all from Republicans. Perhaps a new Republican majority will allow the bill to pass the House, but even if it does, it will likely be met with opposition in the Democrat-run Senate. At the very least, this activity shows that advocates will continue to push for the rights of medical marijuana users to purchase and possess firearms.
Original Post: August 15, 2022
The short answer is “no,” but like most cannabis issues, there is more to the story.
While the Second Amendment provides “the right of the people to keep and bear Arms, shall not be infringed,” the right to own a gun is not absolute. One of the exceptions is found in the Gun Control Act of 1968, that prohibits individuals who are “an unlawful user of or addicted to any controlled substance” from owning or possessing a firearm. Because marijuana is a Schedule I drug under the federal Controlled Substances Act, any medical or recreational marijuana user is federally prohibited from owning or possessing a gun. Further, the federal Bureau of Alcohol, Tobacco, Firearms, and Explosives sent an open letter to all licensed firearms dealers in 2011 stating that medical marijuana cardholders cannot purchase firearms. The ATF also amended a form, in which gun purchasers are required to complete, to now ask if the applicant is “an unlawful user of, or addicted to, marijuana.” Just below that question is a warning that reminds applicants that the use or possession of marijuana remains unlawful under federal law, regardless of whether your state has legalized it for medicinal or recreational purposes. Medical marijuana users who answer “yes” will not be approved for a license, and those who answer “no” risk perjury charges.
There have been legal challenges to this prohibition, but courts have generally upheld the federal stance. For example, in
(835 F.3d 1083 (2016)), the U.S. Court of Appeals for the Ninth Circuit held that the firearm ban did not violate medical marijuana holders’ Second Amendment rights. That same fight is currently taking place in the U.S. District Court for the Northern District of Florida, where the Commissioner of the Florida Department of Agriculture and Consumer Services and three Florida residents filed suit in April 2022. See Wilson vs. Lynch Fried et al. v. Garland et al., Case No. 4:22-cv-00164. According to the plaintiffs, the key issue is “whether the physical and/or psychological effects of medical marijuana on a state-law-abiding patient render them sufficiently dangerous or violent” to abridge their Second Amendment rights. Last week, the U.S. Department of Justice filed a motion to dismiss that argues in part, that medical marijuana patients are too “dangerous” to own firearms, and that law-abiding citizens’ rights are not being infringed.
Other states have taken a different approach. Mississippi, for instance, included a provision in its medical marijuana statute that medical marijuana patients “shall not be denied the right to own, purchase or possess a firearm, firearm accessory or ammunition based solely on his or her status as a registered qualifying patient or registered designated caregiver.” It remains to be seen how this will play out in practice, given the conflict between this provision and federal law (like the conflict between most state cannabis laws and federal law).
Given the pending case in Florida, this issue is getting increased attention. It also highlights one of the practical effects of the tension between federal and state laws on marijuana. Hopefully, this and other issues will be the catalyst for a renewed push for the Biden administration to follow through on campaign promises and reform federal marijuana laws and policies.
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