Lawyers, Guns & Cannabis: Gun Rights and the Lawful Use of Marijuana

With the medical and recreational use of cannabis being tolerated at many levels of government, there is one constitutional issue that remains undecided. Currently, it is unlawful for and user of illicit drugs to own, purchase, or possess a firearm at both the State and Federal level. Unfortunately, this includes cannabis. Various administrations and courts regarding the use of cannabis and the possession of firearms have made many decisions, but none of the decisions seem to agree with each other. This apparent conflict is picking up steam with the legalization of recreational use of cannabis in two states and the medical use of cannabis that is rapidly expanding across the country. Eventually the Department of Justice (DOJ) and appropriate state officials will need to draw a bright line defining the policies in respect to lawful use of cannabis and firearm possession. Within the last couple of years we have seen a preview of the impending showdown.

One of the more seminal cases on the subject occurred in May of 2011, when Oregon’s Supreme Court tackled the murky issue. Leland Berger, a cannabis attorney in Oregon and a member of NORML’s legal committee, decided to take a case involving a denial of a Concealed Handgun License, based on the fact that the applicant was a registered medical cannabis patient.  The Justices issued their opinion as follows:

 In these consolidated cases, the sheriffs of Jackson and Washington counties withheld concealed handgun licenses from persons who met all of the statutory conditions for issuance of such licenses, but who admitted to regular use of medical marijuana pursuant to registry identification cards issued under the Oregon Medical Marijuana Act, ORS 475.300 to 475.346. When the sheriffs’ actions were challenged in court, the sheriffs responded that, to the extent that Oregon’s concealed handgun licensing scheme does not concern itself with the applicants’ use of medical marijuana, it is preempted by a federal prohibition on the possession of firearms by persons who, under federal law, are “unlawful user[s] of a controlled substance.” 18 USC § 922(g)(3). Both trial courts and, later, the Court of Appeals, rejected that preemption argument and held that the concealed handgun licenses were wrongfully withheld. We allowed the sheriffs’ petitions for review and now add this court’s voice to the lower courts’: We hold that the Federal Gun Control Act does not preempt the state’s concealed handgun licensing statute and, therefore, the sheriffs must issue (or renew) the requested licenses (emphasis added).

Although the case was based on federal preemption, the holding still stands that an Oregon resident, as a registered patient, may lawfully obtain a Concealed Handgun License as long as they meet the other criteria laid out in their statute. However, relatively soon after this decision, the Bureau of Tobacco and Firearms (BATFE) decided to release their own statement in regards to Medical Cannabis and Firearm Possession. In that statement Bureau Assistant Director, Arthur Herbert, writes in the open letter to all gun sellers,

“Any 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 … prohibited by Federal law from possessing firearms or ammunition. There are no exceptions in federal law for marijuana purportedly used for medicinal purposes, even if such use is sanctioned by state law.”

This decision by BATFE is reflected policy found on form 4473. Prospective firearm purchasers must fill out this form when going through a FFL (Federally Licensed) dealer. On form 4473, section (e) specifically asks: “ Are you an unlawful user of, or addicted to, Marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance.” This question can be analyzed in different ways. Before the September 2011 letter the assumption was that medical cannabis use is lawful under state law. As such, one is not an “unlawful user.” Furthermore, nearly all cannabis patients and proponents would argue that a patient is not addicted to marijuana and should not precluded from purchasing a firearm.  The purpose of this letter, sent by BATFE, was to definitively tailor these applications to cannabis users, whether lawful or not.

Marijuana and Weapons

In the above-mentioned Oregon case, the National Rifle Association added their voice to Leland Berger in support cannabis patients and their second amendment rights. Brian Vicente, a recognized advocate for medical cannabis and the head of the organization Sensible Colorado, responding to BATFE memo said, “From a patients’ rights perspective, I think this is a travesty…People shouldn’t be denied their constitutional rights based on their choice of medicine.” However, overall, most advocates and organizations have been relatively quiet on this particular subject. One could argue this legal issue faces two opposing groups, as noted in Fully Informed Jury, “Many who support legalization are unfriendly to firearm ownership, and many who support gun ownership rights are unfriendly to legalization efforts.”

The tide has changed many times on the subject over the last few years. And much of it has been media driven. Activist Steve Sarich was robbed by home invasion in 2010. He managed to fire upon his assailants, after they shot him with a shotgun. No charges were ever filed and police believe the shooting was in self-defense. The firearm was confiscated but only as evidence to the attempted robbery, not his use of medical cannabis. Nevertheless, upon applying for concealed weapons permit, Sarich was denied because of his lawful use of cannabis. More recently, a man in Maple Valley now faces federal charges after shooting two people that were attempting to rob him in his home. The man, Justin Loken, was bound with zip ties as robbers cleared out his safe of guns and cannabis. He somehow freed himself and reached for the only firearm let under his mattress. He opened fire on the two assailants and they fled the scene. Mr. Loken was indicted by a grand jury and is being prosecuted for growing medical cannabis and possessing firearms, which carries a stiff penalty with mandatory minimum sentences for the firearm possession.

Yet another example is the high profile case of Montana Cannabis operator, Chris Williams, facing 80 years in prison after being indicted on eight federal marijuana and weapons charges in 2012. Williams was not charged for using his firearms or even of brandishing them, but merely having legal shotguns present at the medical marijuana grow that was, by all local authority accounts, legal under Montana law. He received a five-year sentence in February.

What seems lost in this discussion is that there are bad people that will kill to gain what is not rightfully theirs. True, medical cannabis has roots in illicit drug sales that date back 70 years, when the federal government outlawed its possession. However, thanks to a prohibition black market, many medical cannabis patients that grow their medicine to treat serious debilitating conditions are easy targets for theft and violence.

-e77ee5f158664c5eWhen a patient with MS, HIV, or Cancer is wheelchair bound or weak they cannot possibly defend themselves against young, strong, violent person that is willing to kill for a plant. What other defense do these patients have other than a firearm. These crooks are willing to commit murder over relatively small amounts of marijuana to make a little cash at the expense of the weak. These patients should have the right to protect themselves in their own homes. Nevertheless, the federal government is willing to prosecute people for doing just that, because they choose to utilize an alternative medicine. Due to this apparent oversight by the DOJ, activists and congressmen have gained momentum on a bill to allow patients to protect themselves.

In November 2013 Representative Jared Polis (D-Colorado) introduced HR 3483, the Protecting Individual Liberties and States’ Rights Act, just this past Thursday, and it was assigned to the House Judiciary Committee for review. The bill aims to override the above-mentioned ruling by the BATFE in 2011 and would allow legal medical cannabis patients to practice their second amendment rights to own and possess firearms and/or threat of federal prosecution. This is not necessarily in response to the home invasions but rather the access point owners that were facing federal weapons charges when the shops were raided by federal authorities, in spite of the fact that they were operating in accordance to state guidelines.

This new bill hopes to clarify that those who use cannabis lawfully may enjoy the same constitutional freedoms of each and every other American citizen. The bill proposes to amend title 18 of the USC to allow patients complying with the laws in their states to be exempt from prosecution for merely having firearms. The law would not change for illicit users in non-medical states and would even protect the recent recreational growers and users in states like Washington and Colorado. With the recent recreational production being permitted in those two states, it is likely that some criminals may see these warehouse grows as a huge payday. If criminals are willing to tie up someone at gunpoint for a pound of marijuana imagine what they would be willing to do for 100 pounds. To view the language of the bill click here.

As public opinion in regards to cannabis use shifts, so will the laws. Albeit, slower than public opinion in most cases. The truth is that patients should not be stripped from fundamental rights just because they choose to use an alternative medicine that has shown to work in many instances. While there is currently a federal mandate that prohibits the possession of firearms by users of cannabis, recreational or medical, change is coming.

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