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Gun Rights Consequences of Marijuana Legalization

(Is the Second Amendment going up in smoke?)

What will “Legal” and Low-Dose Marijuana law do to gun rights, you asked?

The short answer is that the Feds won’t allow a dealer to sell you a gun, but the US Supreme Court will let you have a concealed firearms permit…

Confused?  Florida and many other states have decided to allow low-dose marijuana/THC for treatment for medical purposes.  So is a “legal” pot user allowed to purchase a firearm?  The answer from the Bureau of Alcohol Tobacco Firearms and Explosives (ATF) is “No!”  Federal law currently outlaws possession of a firearm by “unlawful user” of, or person addicted to any controlled substance to possess a firearm (Title 18 U.S.C. §922(g)(3)).   The penalty is a maximum of 10 years in federal prison, the same as for a convicted felon possessing a firearm.   The ATF, in an open letter dated September 12, 2011, to Federal Firearms Licensees (FFLs) said “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.”  The potential purchaser is required to answer that they are a marijuana user on question 11.e, on the firearm purchase form 4473.  The ATF prohibits a firearms dealer to sell a medical marijuana/ pot card holder firearm(s) or ammunition.

However, the high court has allowed possession of a firearm by a person with a medical marijuana card.  The US Supreme Court inferred legal possession of a firearm and even a concealed weapons permit by a medical marijuana card holder by declining to hear a case from Oregon.   There, Jackson County, Oregon, Sheriff Mike Winter refused to issue a concealed gun permit to admitted marijuana user Cynthia Willis in 2008.  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, making the Oregon ruling the current law. (132 S.Ct.199(2012))

This issue will certainly be brought before the court again with more states legalizing marijuana in some form, and the confusion between the court and ATF.   My advice, after 25+ years as a criminal defense lawyer is to not mess with the feds.  Even though the Supreme Court impliedly allows possession of a gun by a “legal user,” you may lose your liberty while it gets sorted out, and you probably do not want to be the person before the United States Supreme Court five years from now.  So choose between your pot or your gun.

Chris Rabby
(850) 437-9410