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Marijuana: Concealed Carry And Firearm Ownership

gun laws and marijuana concealed carry license state

Before we begin, I am going to state that this is NOT an opinion piece for or against the legalization of marijuana for medicinal or recreational use. I have my opinion on the topic and I will keep it out of this article. This article IS designed to get you thinking about the myriad of legal issues that have risen from states legalizing the medical and recreational use of marijuana, and the conflict between federal and state laws.

Who Is The ATF And Why Do They Matter?

We all probably know about the United States Department of Justice Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), and it’s regulation over nearly all things firearms related. Federal Firearms Dealers’ (FFLs’) actions are dictated by the ATF. This means every gun store from Cabelas to the small shack around the corner from the grocery store is fully licensed and regulated by a Federal Agency. If you purchased a firearm through a licensed FFL (contrary to what the media may have you believe), you had to fill out ATF form 4473 and pass a background check. Remember all the questions on the form? Pay particular attention to question 11.e:

Are you the unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?

But Don't My State Rights Matter When I Buy or Carry A Gun In My State?

atf dogWhy is this important? Because although states have passed laws legalizing marijuana for medicinal and recreational use, the federal government still classifies marijuana as a schedule I drug which is defined as having no medicinal benefit. I recognize that the 4473 form does read “unlawful user,” and according to state law, you may be legally allowed to use marijuana. Unfortunately, the ATF controls firearms sales and not the states. Federally, there is no such thing as legal marijuana use. In fact, in September of 2011, the ATF sent letters to FFL’s stating that knowingly selling a firearm to someone who is a marijuana user, even if s/he is legally able to possess marijuana in the state, would be a violation of federal law. Most FFL’s would not risk losing their license with the ATF by selling to known marijuana users. So couldn’t one simply answer “no” to question 11.e and be done with it? Sure, if perjury is your thing. See, intentionally providing false information on a federal form like the 4473, would be considered perjury. I know you are thinking, how would the federal government or an FFL know that I have a medical marijuana card or use recreationally? If you are a casual marijuana user, you probably wouldn't pop up on an FFL’s radar. However, like I mentioned earlier, FFL’s are usually very leery about selling guns to individuals who they might think are sketchy. Most would gladly pass up a sale if their gut is telling them something doesn't seem right with the buyer. Your pot leaf glorifying attire may be just enough to have the FFL second guess selling you that firearm. Think about this; some states even have state-issued medical marijuana licenses. At the time of this article, I am not aware of any states where the list of state-issued medical marijuana card holders names are being provided to FFL’s or being merged into the background check database, but it’s not a stretch to think that it could happen in the near future. The federal government has an arsenal of reasons to prohibit citizens from owning firearms so this could be another means of attack.

Think about this; some states even have state-issued medical marijuana licenses. While there are no cases where a database of state-issued medical marijuana users’ names are being provided to FFL’s or being merged into the background check database, it’s not a stretch to think that it could happen. The federal government has an arsenal of reasons to prohibit citizens from owning firearms so this could be another means of attack.

Since Legal Marijuana Use Is New Could This Probably Blow Over?

Recently, August 2016 actually, the 9th U.S. Circuit Court of Appeals ruled that simply having a medical marijuana card issued to oneself, is enough to suspend that person's 2nd amendment right to purchase a firearm.  The case began in 2011 when a gun store denied the sale of a firearm to a woman who had a state-issued medical marijuana license.  The woman filed a lawsuit, and the case made its way all the way to the federal level and was most recently ruled on by the famous 9th Circuit Court of Appeals.  It is not only important to know the ultimate decision of the appeal but to understand the way the court interpreted the law in this case and applied it in this instance.  First, the Court ruled unanimously 3-0 against the plaintiff.  Secondly, the Court ruled that it was reasonable of federal regulators to assume a medical marijuana license holder is more likely to use marijuana.  The Senior District Judge went on to say:

In addition, a ban on the sale of guns to marijuana and other drug users is reasonable because the use of such drugs “raises the risk of irrational or unpredictable behavior with which gun use should not be associated,”

Yes, the 9th U.S. Circuit Court of Appeals has the most overturned decisions of any other federal circuit, but changing and challenging established rulings takes time, money, stress and perseverance.  Will this ruling stick, no one can say for sure.  Will it be overturned or will another court rule differently based on different facts, again who knows.  Until that happens, this case can be cited as precedence for other rulings.

But Concealed Carry Licenses Are Managed and Issued By States Right?

What about concealed carry licenses and marijuana use? This is another issue where state and federal law are at an impasse. There have been several state-level cases resulting in various outcomes. Currently, there are Sheriffs of some states that delay or prohibit known marijuana users from obtaining a concealed carry license. Other states have allowed it, stating that the federal laws regulating the purchase of firearms have no bearing on the citizen from obtaining a concealed carry permit. Even with these rulings, marijuana users still receive push back from the issuing authorities. As recently as 2014, Colorado voters tried to propose a bill that would stop Sheriffs from prohibiting known marijuana users from obtaining concealed carry permits. Outcome…it didn’t gain enough support to be voted upon.

So what does all this mean? Well, it means that there is a huge disconnect between the laws and powers of the federal government and the state government. Ironically, some of the biggest anti-gun lobbyists are also proponents of marijuana legalization. Perhaps THIS is the real reason this issue has not been addressed. Ultimately, the people suffer once again because of politics and politicians’ desire to represent their special interest donors in lieu of their constituents.

So What Do We Recommend?

Like I stated above, regardless of your opinion on the medicinal or recreational use of marijuana, there is a real issue that needs to be addressed and clarified. Right now, it is as clear as mud, and people may unknowingly be sacrificing their constitutional rights in order to get high or use medical marijuana. There are undoubtedly people who are chronically ill who could benefit from medically prescribed marijuana. However, for all the other 18-25 year olds who have joined the craze to get a medical marijuana recommendation from a doctor for their carpal tunnel syndrome as a result of playing video games, or to help them sleep, I suggest you weigh the options and look for potential, unintended consequences of getting that recommendation or state-issued medical marijuana license.

Resource links:

ATF Form 4473

ATF Letter To FFL’s

 

UPDATED FRIDAY NOVEMBER 18th, 2016

The DOJ just released updated information regarding how they will handle the issue of medical marijuana and firearms purchases.  The DOJ posted a memo advising Federal Firearms Licensed Dealers (FFL's) that there would be changes to the ATF 4470 form.  Here is a link to that memo.  There are several changes however here is the change that directly addresses medical marijuana:

  • Question 11.e: Added a warning statement regarding marijuana that has been legalized or decriminalized for medicinal or recreational purposes in the state where the transferee/buyer resides.

FFL's will be required to begin using the new for on January 16th, 2017.

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22 Responses to Marijuana: Concealed Carry And Firearm Ownership

  1. Chuck Cochran May 10, 2016 at 10:54 am #

    I agree that there is a huge risk being a firearm owner or CHP holder and the medical use of Cannabis (I won’t even go into the recreational use). Currently, it is still a controlled substance at the Federal level. The biggest issue I’ve pondered, before it even became legal in Colorado, is the lack of a Medical/Legislative agreement as to what constitutes legal impairment under the law. Personally, I have no desire to even try the stuff, but that’s just my opinion. We discussed this ad nauseum in my CC class that I took, and the general consensus was that it’s such a legal grey area right now, that a prudent CC holder is best off avoiding use or contact with the substance.

    • Matthew May 10, 2016 at 2:09 pm #

      Hi Chuck,
      I agree there is definitely a lot to consider before getting a marijuana recommendation when it comes to someone’s desire to own firearms. Wherever this goes, I’m sure it will be slow moving and clear as mud. Thanks for the comment.

      • master z September 8, 2016 at 9:31 pm #

        you make no sense as alcohol has worse effects than maijuana

  2. Rickie Hembree May 10, 2016 at 11:11 am #

    I have been 1/2 way around the world 4 times in army.I have seen and done almost everthing I would rather see marijuana users than a man or women drinking with a weapion

  3. Matthew May 10, 2016 at 2:12 pm #

    Hi Rickie,
    Thank you for your service and for the feedback. I don’t think there needs to be a choice between the two (marijuana vs alcohol). Anyone in possession of a firearm should be of sound mind regardless of the intoxicant.

    • Grump May 14, 2016 at 7:52 pm #

      Regardless ??? Under the influence PERIOD puts you in jeopardy and a defense Attorney will bury you

      • Matthew May 14, 2016 at 9:40 pm #

        Grump, I think maybe my comment came across the wrong way. I don’t believe anyone should be under the influence of anything while possessing a firearm. And I agree it will cause you major problems, in many states it is criminal to possess a firearm while under the influence of any intoxicant. Thanks for the feedback.

  4. Ron May 10, 2016 at 3:56 pm #

    My daughter in Colorado has a painful back ailment that using marijuana eases the pain, but she formally relinquished her medical marijuana card before applying for her concealed carry permit. In Colorado, the medical card isn’t that big a deal anyway, all it does is allow you to get the marijuana a little cheaper than you’d have to pay otherwise.

    The pricing structure in Colorado is like this: medical marijuana card holders pay the least, state residents without the card pay the next highest, and out of state residents pay the most. Also, state residents can buy a maximum of one ounce per visit, while out of staters are limited to a quarter ounce per visit.

    The government could still cross check marijuana sales with concealed carry permit holders, because before you’re even allowed into the sales area of the store, you have to produce your drivers license, which they scan.

    • Matthew May 10, 2016 at 4:09 pm #

      Ron, Thanks for sharing your personal experience dealing with the issue. Definitely makes you think about how all these databases could be used in ways we wouldn’t initially anticipate. I appreciate your contribution. I hope your daughter can find relief from her back pain.

  5. Amanda May 14, 2016 at 9:46 pm #

    I never thought about it, but there could be super serious consequences for ccp holders (or any gun owners) who use drugs. There is a specific federal statute that says it is a crime to be a drug user in possession of a firearm. I believe it is a felony. If convicted, then you are a felon and can’t own any guns at all. Not to mention the essentially mandatory prison time in the federal system.

    • Matthew May 15, 2016 at 7:19 am #

      Hi Amanda, great points. Thank you for reading and glad you liked the article!

  6. Lynette September 1, 2016 at 3:28 pm #

    Now that the 9th Circuit Court of Appeals has ruled that medical marijuana users do not have a right to buy or possess firearms, some of the issues brought up in the case of S. Wilson v. Loretta E. Lynch really should be a cause for concern. The judges stated that even just having a medical marijuana card is a reasonable cause to assume that a person is using and/or in possession of marijuana. So with that ruling in place, should a person then have to surrender their 4th Amendment rights, as well as their 2nd Amendment right? Since the 9th Circuit proclaimed that a person with a medical marijuana card is using or in possession of an illegal substance, can the fact that person merely has a medical marijuana card be reasonable cause to search their home, place of business, or vehicle?

  7. Mont September 8, 2016 at 12:02 pm #

    The ruling bars future purchase of firearms. Firearms acquired before her attempted purchase may still be retained by Ms. Wilson. And speaking from a law enforcement background, I applaud the decision, one of the very few times the 9th Circus got it right. Drug (of any kind) impaired minds and guns do not mix. EVER

    • Matthew Maruster September 9, 2016 at 6:25 am #

      Mont, I agree 100% with you about not mixing any drug/alcohol, legal or illegal with firearms.

    • Seth November 26, 2016 at 4:52 pm #

      I’m curious about this too..? I don’t understand, and maybe someone can clarify this.

      I assume that what this means is if you bought guns in 2012-2013 and say got your med card in 2014, you’d fall under this umbrella?

      I read somewhere that if she were to surrender her card she could start purchasing a weapon again? There is so much gray area with this that I think all of these things need to be addressed: A) If you bought guns BEFORE you became a medical patient, are you still in danger? B) if so, why don’t medical marijuana forms have this information in it!? C) If you surrender your card, are you less of a target?

      I’m curious because like I said there is so much gray area that this should have been clarified somewhat, at least you’d think??

    • Seth November 26, 2016 at 4:54 pm #

      Ok, this helped a little bit, so if she purchased weapons before becoming a patient, she’s able to retain them? I thought it said that you cannot own, or posses weapons if your a med patient?

      • Jacob Paulsen November 26, 2016 at 8:36 pm #

        The Federal law says that possession of marijuana is illegal. Within states where it possession or use has been legalized that Federal law is not enforced. However, the Federal law also says that to be in possession of a firearm and marijuana is an additional… extra crime. No state has passed any law that has legalized firearm possession in conjunction with marijuana possession. So yes that is a crime. The recent ruling by the court didn’t address every possible question or scenario. What the court clearly stated is that future purchase is illegal… that doesn’t mean that any possession isn’t illegal… it only means the court’s ruling didn’t address that question.

  8. Larry September 8, 2016 at 12:17 pm #

    Well I think we all can see where this is going and what can happen over night with the wrong people in the whitehouse or on the Supreme Court. If you want to keep your right to keep and bear arms regardless of how you feel about Donald Trump you had better get out and vote and urge and help get him elected. If Hillarys elected Finstein bill for seizure of guns may get passed.
    Perhaps even more of a problem would be her appointments to the Supreme Court, and that could mean as many as three or more if she’s there for eight years. I think we’re seeing just what will happen now if Hillary continues what Obama started. You can be sure that many more illegal
    executive orders coming the first day she’s in office if she wins. Everything I’ve read on this matter state that these orders are suppose to be to define a law except as to where it effects only that executive branch, however even at state levels this practice has gone on much to long unchecked. One of there other tools is to price most people out of the ability to afford a gun, and to a lesser degree ammo as well. The spike in ammo cost is almost out of hand I can remember not that many years ago 22 Ammo was 8.00 a box of 500 at Walmart. 45 cal was 12.00 box of fifty and they were available anytime you needed them, just look at the prices now if you can find them. So if you want to keep your RIGHT to keep and bear arms go and vote or they will be gone or so restricted you can’t qualify.

  9. Matthew Maruster September 9, 2016 at 6:28 am #

    Larry, Definitely a lot riding on this election when it comes to the future direction of our Country.

  10. Kyle franco September 13, 2016 at 5:23 pm #

    Oh the government. I don’t care anyone’s opinion on marijuana. The hypocrisy of it all is I can go into a bar with my concealed carry and drink. Btw cocaine is class 2 drug while marijuana is a class 1

    • Matthew Maruster September 13, 2016 at 6:55 pm #

      Kyle, good point, there are states, like yours that do not prohibit alcohol consumption while possessing a firearm. There are also states whose law’s prohibit consumption of alcohol or drug while possessing a firearm. I feel that makes complete sense and am shocked states still allow firearm possession while consuming intoxicants. I agree the governments scheduling of drugs may not reflect the current push for medical marijuana, however even if it was rescheduled as a schedule II drug, I couldn’t advocate getting high and carrying a firearm.

  11. Kathy k. July 1, 2017 at 1:56 pm #

    I’m in the law enforcement field but not a law enforcement officer. Although possession of marijuana is the highest on our list of charges of any controlled substance, I believe that people who possess, manufacture or distribute any other type of illegal drugs are much more cautious due to the severity of the penalty it could bring if convicted. People who possess marijuana don’t seem to be as concerned because in our state ppl can have up to 4 oz of marijuana and it still remain a misdemeanor as long as it is not baggied out to indicate that it is being sold. Some people say 4 oz can not be personal use but I’m pretty sure there’s a lot of people that would disagree especially smokers that have been doing it since they were teens and are now much older. With that being said I personally feel that gun rights should not be taken away just because somebody has a condition that make them eligible for medical marijuana. Hell they probably need a gun more than some of the others due to having medical marijuana cuz if somebody finds out you have it they know you got the marijuana that a lot of people are seeking and may need protection. Everybody has their own opinion I do see the other side of why not having a weapon and a medical marijuana card the only thing is there’s a lot of people that possess weapons do not have a medical marijuana card but still smoke marijuana

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