By: Jessica Alvarez, Articles Editor, J.D. Candidate, May 2020, St. Thomas University School of Law.

In April 2018, Matthew Rowan, a medical physician licensed in Pennsylvania, went to his local gun store to purchase a revolver for self-defense. Upon inquisition by the seller, Dr. Rowan stated he had a medical marijuana prescription to help treat his post-traumatic stress disorder. However, this truthful admission proved to be counterproductive because it forced the gun-seller to deny Dr. Rowan the sale because of his medical marijuana prescription. Dr. Rowan filed suit in November 2018 claiming violations to “his Second Amendment right to own a firearm and his Fifth Amendment right against self-incrimination (because federal firearm transaction forms require medical marijuana patients to report that they use the drug ‘unlawfully,’ even when it’s sanctioned under state law).”

In the United States, it is a federal crime for “someone in possession of an illegal drug [to] also [possess] a firearm.” While thirty-three states (including Pennsylvania) have legalized medical marijuana, the federal government has not caught on to this trend. Rather, the government continues to classify marijuana as an illegal, controlled substance. This classification system categorizes controlled substances into five “Schedules” based on the drug’s potential for abuse, status in international treaties, and any medical benefits they may provide. Drugs in Schedule 1 are considered to have no medical benefit and the highest potential for abuse. And, despite studies documenting its medical benefits, marijuana is still considered a Schedule 1 drug. This conflict between state and federal law creates problems for any person with a legal medical marijuana card who also wants to exercise their Second Amendment right to own a firearm, such as Dr. Rowan.

In 2016, the Ninth Circuit ruled that the federal law passed in 1968 does not violate the Second Amendment and stated that “Congress reasonably concluded that marijuana and other drug use ‘raises the risk of irrational or unpredictable behavior with which gun use should not be associated.’” However, Dr. Rowan’s attorney asserts that Pennsylvania’s strict restrictions on their medical marijuana program, should be enough to curb the government’s concern over marijuana’s connection to lawlessness. Additionally, Dr. Rowan’s attorney states that under Pennsylvania state law, “you’re only prevented from purchasing a firearm if you’re an unlawful user of, or addicted to[,] a controlled substance. Pennsylvania statute defines an unlawful user as someone who does it without a recommendation from a doctor. [Therefore], it seems to us that a medical marijuana patient with a state-issued card is not an unlawful user of a controlled substance. That statute should not apply at all.” As Dr. Rowan and his attorney fight to change the law in Pennsylvania for medical marijuana users, there is still a long road ahead to induce change throughout the rest of the states. But for now, medical marijuana users must choose between their guns or their grass.