The Gun Collective
The Gun Collective

USA –-(Ammoland.com)- Welcome back to The Legal Brief, the show where we CRUSH the various legal myths and misinformation surrounding various areas of the gun world. I’m your host Adam Kraut and today we are talking about marijuana and guns or how you can’t have both.

For some reason the question about medical marijuana and firearms ownership continues to flood my inbox. So, hopefully this episode will put to bed any misconceptions there might be. Remember, as always, we are dealing with two sets of laws, both federal and state.

A number of states have been passing medical marijuana initiatives. In fact, as of the airing of this episode, the District of Columbia and 29 states have legalized medical marijuana. But I wouldn’t be rushing to your local head shop to stock up on paraphernalia just yet. Well, not if you want to be able to legally possess firearms and ammunition.

While many states have allowed their residents to utilize marijuana for medicinal purposes, it still remains illegal at the federal level.

The result? If you use marijuana, you are a prohibited person. And I know what some of you are going to say, but Adam, the 4473 says “Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?” and my state legalized it.

If you’re asking me that question, it is safe to say you probably haven’t bought a gun since January of 2017, because the new form even provides very clear warning right underneath the question in bold print. It says “Warning: The use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medicinal or recreational purposes in the state where you reside.”

The 9th Circuit addressed the issue of an individual with a medical marijuana card and an attempted firearms purchase in Wilson v. Lynch. We are only going to discuss the Second Amendment aspect of her claim. Wilson obtained a medical marijuana card in the state of Nevada. Prior to her attempted purchase of a firearm ATF had released an open letter to FFLs which stated in part “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, even if the person answered ‘no’ to question 11.e. on ATF Form 4473.”

Wilson went to her local gun shop where the owner stopped her from completing the form prior to question 11.e since he knew she had a medical marijuana card and refused to sell her a gun. Wilson in turn sued the Government alleging, among other things, that the law, regulation and open letter violated her Second Amendment right.

The Court employed a two step analysis, which first looked at whether the challenged law burdened conduct protected by the Second Amendment and then applied an intermediate scrutiny analysis to determine whether the law could pass constitutional muster. Remember, intermediate scrutiny requires that the government’s stated objective be important and there must be a reasonable fit between the challenged regulation and the asserted objective.

With respect to the first part of the test, the inquiry was straightforward. Because Wilson insisted that she was not an unlawful drug user, a convicted felon, or a mentally-ill person, she is not a person historically prohibited from possessing firearms under the Second Amendment. As such, the Court determined the law, regulation and open letter burdened her Second Amendment right and proceeded to step two of the analysis.

In step two, the Court determined that “[t]he connection between these laws and that aim requires only one additional logical step: 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).”

It went on to state that it was “reasonable for federal regulators to assume that a registry cardholder is much more likely to be a marijuana user than an individual who does not hold a registry card.”

The Court found that the degree of fit between the law, regulation and open letter and their purpose of preventing gun violence was reasonable, satisfying the intermediate scrutiny standard.

Weed Marijuana
Weed Marijuana

In short, unless the Federal Government changes the law relating to marijuana’s legality or the ability of a medicinal marijuana user to possess firearms, anyone who uses marijuana cannot possess firearms and ammunition.

Hopefully that clears up the smoke surrounding this issue. If you guys liked this episode, you know what to do, hit that like button and share it around with your friends. Be sure to check out my website adamkraut.com. Remember, if you have a question you want answered on this show, head over to The Legal Brief section on theguncollective.com. Don’t forget to like The Gun Collective on Facebook, Instagram, YouTube, Full 30, Snap Chat and wherever else you can catch us on social media.

And as always thanks for watching!

Links for this episode:

  • Medical Marijuana – States which have legalized : http://medicalmarijuana.procon.org/view.resource.php?resourceID=000881
  • ATF 4473 : https://www.atf.gov/firearms/docs/4473-part-1-firearms-transaction-record-over-counter-atf-form-53009/download
  • 18 U.S.C. 922(g)(3) – Unlawful Acts : https://www.law.cornell.edu/uscode/text/18/922
  • 27 C.F.R. § 478.11 – Unlawful User of or Addicted to a Controlled Substance : https://www.law.cornell.edu/cfr/text/27/478.11
  • Wilson v. Lynch : https://cdn.ca9.uscourts.gov/datastore/opinions/2016/08/31/14-15700.pdf

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