By: Danielle DeMahy

There are twenty-nine states and Washington, D.C. that legally allow the use of marijuana in some form, eight of which even allow recreational use. There are many disregarded health benefits that come with medical marijuana, such as reducing seizures or symptoms of cancer, decreasing anxiety, slowing the progression of Alzheimer’s disease, reducing multiple sclerosis pain, and many other conditions.[1] States throughout the U.S. are slowly starting to see the increasing value in medical marijuana, thus implementing laws to support it.

In September 2011, the Federal Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) released an open letter after receiving numerous inquiries concerning state authorized medical marijuana and Federal firearms laws. The letter stated, “there are no exceptions in Federal law for marijuana purportedly used for medicinal purposes, even if such use is sanctioned by State law.”[2] According to the Drug Enforcement Administration, marijuana is classified as a Schedule I drug, which is the class with the highest “potential for abuse and potential to create severe psychological and/or physical dependence.”[3]

When a person seeks to purchase a firearm, they are required to fill out the ATF’s Firearms Transaction Record, Form 4473. Included in this form is question 11(e), which asks the purchaser if they are “an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance.”[4] In 2017 a revision of the form was put in place which included a warning to potential purchasers explaining that even if marijuana is “legalized or decriminalized” for recreational or medical use in the state of residence, it still remains unlawful under Federal law. This means if you answered yes to question 11(e), you were prohibited by Federal law to purchase a firearm.

The Second Amendment to the United States Constitution guarantees a person’s right to bear arms for security purposes.[5] Recently, the U.S. Court of Appeals for the Ninth Circuit held that banning medical marijuana users from purchasing firearms does not violate their Second Amendment rights.[6] The court further explained that the purchaser could have accumulated legal firearms prior to acquiring her medical marijuana card (“Card”), and the ATF Open Letter and Federal laws would not impede her rights to retain possession of her firearms. On the other hand, she could purchase firearms and exercise her Second Amendment right at any time if she relinquished her Card, “thereby demonstrating to a firearms dealer that there is no reasonable cause to believe she is an unlawful drug user.”[7] The court’s questionable rationale is illustrated when it stated “it is beyond dispute that illegal drug users, including marijuana users, are likely, as a consequence of such use, to experience altered or impaired mental states that affect their judgment and that can lead to irrational or unpredictable behavior[8]

Federal law criminalizes the possession or receiving of a firearm by a person addicted to a controlled substance or an unlawful drug user.[9] This law brings conflict to those who have been issued a valid Card and those same individuals who also choose to exercise their right to bear arms. Under some circumstances, they must choose either their health or their safety. This notion that substance use increases unpredictable behavior is fundamentally flawed.

In an interview, the authors of the book Drugs and Drug Policy: What Everyone Needs to Know compared this notion with cigarette smokers and alcohol. They explained that smoking alone certainly does not result in crime, but within the population of smokers there is a likelihood to find people participating in illegal behavior. Further, there is an alarming amount of evidence which shows a correlation between “alcohol intoxication and pharmacologically induced violent crimes.”[10] However, “[t]here is little direct association between marijuana or opiate use and violent crimes . . . it is also possible that for some would-be offenders, the pharmacological effect of certain drugs . . . may actually reduce violent tendencies.”[11]

Card hopefuls must go through a series of requirements before being issued a valid license. Each state has their own set procedure, for example, in Florida although the new laws are not set in place until June 2017, they list qualification requirements to obtain a Card. Among those qualifications, patients must obtain legitimate medical records from their primary care physician accurately describing the diagnosis; the patient must have been diagnosed by a doctor as having a debilitating medical condition; and upon receiving the Card, the patient must register with the Florida Department of Health.[12]

Individuals who will be able to obtained a Card are those with serious medical conditions, not just every person who desires one. To allow individuals to keep their firearms after they acquire a Card, but prohibit them from purchasing firearms after they acquire a Card is inconsistent. Using the court’s reasoning, what makes a person less irrational or unpredictable when having the firearm before obtaining a card? Now that medicinal marijuana is being legalized across the country, the Second Amendment must be applied consistently. The Federal Government must acknowledge the states that have legalized medicinal marijuana and properly categorize the individuals with a Card as lawful users.

[1] See Jennifer Welsh & Kevin Loria, 23 Health Benefits of Marijuana, Bus. Insider (Apr. 20, 2014, 3:03 PM), http://www.businessinsider.com/health-benefits-of-medical-marijuana-2014-4/#c-slows-the-progression-of-alzheimers-disease-7.

[2] Arthur Herbert, Open Letter to All Federal Firearms Licensees, Bureau of Alcohol, Tobacco, Firearms, & Explosives (Sept. 21, 2011), https://www.atf.gov/file/60211/download.

[3] See Drug Scheduling, U.S. Drug Enf’t Admin, https://www.dea.gov/druginfo/ds.shtml (last visited Jan. 28, 2017).

[4] Firearms Transaction Record, Bureau of Alcohol, Tobacco, Firearms, & Explosives https://www.atf.gov/firearms/docs/4473-part-1-firearms-transaction-record-over-counter-atf-form-53009/download (revised Oct. 2016).

[5] See U.S. Const. amend. II.

[6] See Wilson v. Lynch, 835 F.3d 1083 (9th Cir. 2016).

[7] See id. at 1093.

[8] Id. at 1094 (emphasis added).

[9] See 18 U.S.C. § 922(g)(3) (2016).

[10] Christopher Ingraham, Why Medical Marijuana Patients Can’t Buy Guns, The Wash. Post (Sept. 7, 2016), https://www.washingtonpost.com/news/wonk/wp/2016/09/07/why-medical-marijuana-patients-cant-buy-guns/?utm_term=.d039466fe50d.

[11] Supra note 9.

[12] See Florida Medical Marijuana Qualification, Marijuana Drs., https://www.marijuanadoctors.com/medical-marijuana/FL/qualification (last visited Jan. 28, 2016).