marijuana gun hand cuffs weed
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By Chris Rabby

What does “legal” and medical marijuana law do to your gun rights, you and many gun owners ask?

The short answer is that the feds won’t allow a dealer to sell a pot-card holder a gun, and they shouldn’t possess one.

Florida and some other states have decided to legalize low-dose marijuana/THC for medical treatment or personal use. Many states have even amended the their constitutions to allow it. However, a “legal” user is not allowed to purchase a firearm.

In Wilson V. Lynch, Rowan Wilson was a “legal” marijuana prescription card holder in Nevada. She sued because a federal firearms licensees dealer (FFL) would not sell her a firearm, pursuant to directions from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF).

In September, 2011, the ATF directed all FFLs “that regardless of whether his or her State has passed legislation authorizing marijuana for medical purposes, a person is an unlawful user and is prohibited by Federal law from possessing firearms or ammunition.” Any potential purchaser is required to answer that they are such a person on ATF Form 4473,  question 21 e.

ATF form 4473 marijuana question 21e
Courtesy atf.org

The court’s ruling said Wilson’s right to bear arms under the Second Amendment of the U.S. Constitution had been infringed, but that the government had a right to infringe upon it. Marijuana is still classified as a Schedule I controlled substance under the Controlled Substances Act, 21 U.S.C. § 812.

A Schedule I controlled substance is deemed to have “no currently accepted medical use in treatment…and…a lack of accepted safety for use of the … substance under medical supervision.” Id. § 812(b)(1)(B) & (c). Federal law outlaws possession of a firearm by an “unlawful user” of, or by a person addicted to any controlled substance, to possess a firearm (Title 18 U.S.C. §922(g)(3)). The penalty is the same as for a convicted felon possessing a firearm, a maximum of 10 years in prison.

The United States Supreme Court declined to accept the Wilson ruling. The Wilson case did not specifically address if it was legal to possess a weapon by a pot card holder, because there was no showing that Wilson actually had a firearm.

weed marijuana second amendment gun rights atf
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The US Supreme Court previously allowed a medical marijuana card holder to possess a firearm and a concealed weapons permit by declining to hear a case from Oregon. There, Jackson County, Oregon, Sheriff Mike Winter refused to issue a concealed gun permit to an admitted marijuana user. She appealed that decision and was issued a concealed weapon permit by the state appeals and Oregon Supreme Court.

The Sheriff’s petition for writ of certiorari to the United States Supreme Court was denied (132 S.Ct.199(2012)). But it appears the Wilson decision is now controlling, so you should not possess a firearm if you have a pot card.

This possession issue will certainly be brought before the Court again with more states legalizing marijuana in some form. My advice, after 25+ years as a criminal defense lawyer is to not mess with the feds. You do not want to be the person before the United States Supreme Court five years from now. So for now, you will hav to choose between your pot or your guns.

 

Chris Rabby is a criminal defense attorney practicing law in Pensacola, Florida.

This article was originally published in November, 2020. 

34 COMMENTS

  1. Get yer pot the old fashioned way. In a back alley. Haven’t gotten high in a very long time((like 40 yesrs). Why would you get on a “list” and jeopardize your gun rights? Besides you’re not named Hunter😒

      • No…although my new phone is so large I can see how NO one would know you had a gat! Also the stupid SP fakebook page isn’t deleting. It looks great but too much $.

        • FWW,

          Agree…they are expensive…in fact, when planning to replace my G43 with a new M&P 9s as my EDC, the cost of a new SP was factored into when I could afford to make the switch.

          Of course, justification for a new gat, more magazines, and a new holster had to go before the Spousal Approval committee. Getting it released from Committee took some fancy dancing. 🕺

  2. “My advice, after 25+ years as a criminal defense lawyer is to not mess with the feds.”

    Especially if you own a dog.

  3. Guns and pot together, not a good idea.
    But the Feds regulation of drugs is not working out so well, either. The FDA is nothing more than a taxpayer-funded industry advocacy and lobbying organization.

    Get rid of them. The do not protect consumers; they work for the industries they are supposed to regulate.

    • The FDA does do some good. The DEA, on the other hand, just replicates the mistake of alcohol prohibition 100 years ago.

      Voters who got marijuana legalized at the state level should be beating on their federal representatives and senators to legalize it at the federal level, too.

      • Prohibition was the excuse for the NFA, gangland killings and all that were the reason to ban Chicago Typewriters, silencers, SBR’s and SBS’s.

        Today, gangs fighting over turf to deal illicit narcotics drive the murder rate and thereby drive gun-control efforts.

        Funny, that. Nothing new under the sun, I guess.

  4. I don’t have a problem with marijuana card holders owning a gun as long as they don’t use it under the influence, same logic as with alcohol and guns.
    I don’t smoke and I don’t drink either, but I really don’t think the occasional use of marijuana is more dangerous than drinking alcohol.

  5. Watch to see if the gun-hating states support changing federal law to remove marijuana from the controlled substances list.

    This little collision of regulations is exactly what the gun-haters have been dreaming about – a way to prohibit large swaths of their citizens from possessing a firearm, while letting the Feds take the heat for it.

    They couldn’t be happier.

  6. There are bleeding heart politicians aplenty. Just find other instances where the feds will criminalise pot users and you’ll find a way to make cannabis legal on federal books too.

  7. But if the Feds got rid of Prohibition how would they justify an ever expanding set of BoR destroying police-state policies to be weaponized against everyone at the drop of a hat?

    • Easy. There will always be another boogieman. (How much of our rights have we regained since the post-9/11 hysteria?)

      • They both are problematic but the WoD has been far more corrosive domestically and enjoys wide support. It has since ’71.

  8. Remember when ‘I Haz A Question’ referred to marijuana as ‘the devil’s lettuce’? He’s either 90 years old or a complete choad. Probably both.

  9. It’s nice the federal government gives us choices.

    Addicted to?
    Never mind the twenty year user of hydrocodine, xanax, whatever. Can’t become addicted to anything Big Pharma sales can you.
    Juke on.

    • Exactly, remember that years ago government agencies approved the indications for oxycodone even thought it stated it was not addictive. They all knew opioids were highly addictive. But a lot of $$$ was involved. We all knew how well that ended with all the pill-mills.

  10. Ending prohibition did not end the use federal law enforcement against the alcohol production business. The BATFE did not go away after the End of prohibition. Federal agencies are forever unfortunately.
    Because the government wants the tax money.

      • My bad. I forgot. It was the Treasure department that went after the bootlegers. The FBI had not been created yet.

        • Everyone forgets things and that’s kinda the point. That’s what your loving government wants you to do. Forget past transgressions so that they can engage in the same thing only bigger and better.

          The Prohibition Agents move around and get divided up sometimes. Some of that makes logical sense but the rest I suspect is a designed from the jump as a shell game.

          But who cares about Treasury vs BATFE vs DEA, right? Well, you should considering the way things are going.

          The big question is how people will react to what is coming. Because we already know how those Prohibition Agents operate, now don’t we?

          Who’s going to control FedCoin when that’s released? Treasury? Federal Reserve? LE? DEA? FDA? BATFE? Maybe a mix of them all?

          See the Chicoms are already testing not the idea but the implementation of of making their currency digital and phasing out cash. But they are more honest than Western countries that engage in this stuff by stealth.

          See, the CCP admits right from the jump that their currency comes complete with “expiration dates”. It’s meant to force you to spend it so that the tax men get their cut. It also allows them tight control over the overall money supply and prevents savings because today, everything is about debt, not savings.

          Combined with a “social credit score” woooeeee is that a powerful combination.

          Well, now, recently that super “conservative” government across the pond run by BoJo consistantly comes up with not-plans that become plans for the UK and then somehow end up here not too shortly after that. Interesting to note that the Brits now say they’re going to release a “BritCoin” with the same concept.

          Gotta stay ahead of that filthy BitCoin and all those other cryptos don’tcha know, and we can’t have people hording gold or silver either. And cash? Pffft. That’s dirty, covered if Covid and sooooo 20th century.

          And it’s not just trendy. Governments HAVE to do this. HAVE to. Listen to them, they’ll tell ya all about it. There’s no choice you see, it’s got to be done to “fight tax evasion and… drugs!” (What, no terrorism/prostitution/gambling/whatever else fighting?). Fuckin’ shocker, eh? Didn’t see that one coming a nautical mile off.

          The best part for American civil liberties is this: that’s the same argument our government is already toying with about the same proposal.

          So, how much freedom do you think you’ll have with FedCoin? LOL.

          No need for an Operation Choke Point then. That would far too inefficient when one has direct control over a digital currency. Now they can force you to spend or save as they wish and determine in advance what you may or may not spend your money on.

          “You’ll own nothing and be happy”. I would guess that includes guns. And land. And retirement accounts. And… well everything else.

          And how do you know that FedCoin is coming for sure? Not because of BTC or ETH or Doge. Because guess who’s already announced that they’re launching a digital currency in direct competition with the US dollar? Fucking Facebook.

        • to strych 9
          You sound like one of those John Birch people that I used to hear when I was a kid in the 1970s. Who were warning the United States that it was a bad idea. To try to do business what the Communists in China or Cuba or the USSR.

          They said the communists didn’t have the expertise and education or resources to improve their economies. They said they should be allowed to stay in their communist Backwater societies.
          American capitalism should not help communists to become better at being communists.

          I remember Pat Buchanan saying these things when he ran for president many years ago. And no Pat Buchanan is not a racist. And I don’t know if he is a member of the John Birch Society.

          Btw
          I have a great deal of respect for the John Birch Society and I like them. Because their members we’re the only ones who spoke up for the Civil Rights of the Black Panther Party for self-defense. Those John Birch Society law makers in the California state legislature publicly opposed the Mulford Act. They voted against it.

          I share your concerns about the Communist Chinese government. And the love affair that some Americans have with Chairman Mao.

  11. Marijuana as a schedule 1 drug was not by accident. It was purposeful. Same as many drugs that were made illegal, a definite purpose.

    Drugs are not my thing. I don’t really care one way or the other.

    Now same as firearms, most laws against drugs were rooted in racism. That fact alone precludes my support for such laws.

    • I’m sorry I have to burst your bubble. No actually I’m not sorry. The drug legalization movement was founded on racism. They said if they could legalize drugs there would be no reason for the blacks to have guns. They said violence would go away in the black community. It wasn’t until white people with medical marijuana Cards asked for a gun for self-protection. Now all of a sudden the Legalization community is interested in second amendment rights. Amazingly these white people actually believed that their legalized business of drug selling would not be robbed by criminals.

      The drug legalization crowd has always supported the passage of gun-control laws. I have yet to see them support the repeal of any law, that increases the penalty for drug possession when you’re caught with a firearm.
      These people are socialist Progressive in their political orientation.

      • So the idea that drug use by degenerate races for the main reason for prohibition was not racists?

        I chose to look at the root of the issue of why certain drugs were prohibited. There are several groups who as you say use racism for legalization. Would these groups exist without the original prohibition? That doesn’t absolve them of their racism, it is an observation of the consequences of the original prohibition.

        Ironically it was Mexicans and Blacks that were used to gain support for prohibition because they were considered to be degenerate and the use of drugs would lead white women to have sex with them. Same for Chinese and opium.

        To be clear, I don’t care to use these drugs. I am commenting on the ideas that created these laws and the failures of prohibitions. There is a link to the idea of these same regressives who think Firearms prohibition would work when all other prohibitions have failed. That is where my interest in the debate is grounded.

  12. The Drug legalization crowd are not the friends of Liberty. They have supported the passage of gun control and they support the passage of taxes and the raising of taxes on the drug and alcohol business. They use this to entice the voters and government to support a change in policy. Basically the potheads support a bigger and growing government.

    And they don’t support the personal responsibility that goes along with the drug use. Because they want government paid for Rehab. They want government paid for needle exchange programs. And in fact they want government paid for drug injection centers.

    Alcoholics Anonymous was always a private organization.

      • No, forcing people to pay for this crap is not Liberty. What you support is peaceful slavery. Instead of the uncertainty of Freedom.

        • You’re right. Using a government monopoly on force to PREVENT me from putting whatever I want into my own body DEFINITELY sounds like freedom. And if I choose not to exercise that freedom, I’m glad to know you’re okay with sending the cops to shoot my dog and then me.

          If yours was the logic of gun owners everywhere, I would be wildly anti-you. People with guns don’t get to tell people without guns how to live their lives without rightfully being called names you wouldn’t like.

      • They only care about drugs ages 18-65, after that they give you all kinda drugs, hurry up and die already. Social security benefits, dead people making money.

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