Do Medical Marijuana Users Have the Right to Bear Arms? (UPDATED)

Jan 20, 2023 Chicago, IL

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 Wilson vs. Lynch (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 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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