Cannabis and Gun Laws – A Consistently Inconsistent Legal Grey Area

Joe Evans
Joe Evans - Content Writer

Mar 03 2021 - 6 min read

It’s time to talk about cannabis and gun laws. Staying on the right side of the law when it comes to medical marijuana use is key. Staying on the right side of the law when it comes to gun ownership is also key. This article looks at the two, side by side. Please also note that we here at Leafwell are not lawyers (cannabis and cannabinoid science is more our thing!), and if you need specific legal advice, it is best to consult one. There may be legal loopholes and state-specific information that we do not know about! Laws can sometimes change suddenly and rapidly, so keep an eye out for changes!

There are few things more synonymous with American culture than the Second Amendment. The second entry on the Bill of Rights to the constitution grants citizens the right to legally possess and carry firearms. While the proper interpretation of this often-debated 27-word sentence written in the late 1700s has been political red meat for nearly 200 years now, the fact remains that it grants people the right to bear arms today.

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And Americans surely have taken advantage of that Amendment. So much so that, according to a 2017 Gallup poll, there are actually more guns than people in the entirety of the U.S. But what about the more than 4 million medical cannabis patients in the 37 states and U.S. territories that have established medical cannabis programs? Do they have the same rights as the average American citizen when it comes to guns?

Sadly, as this article will break down, gun ownership as a medical cannabis patient is a tricky grey area for patients to try to navigate. We’ll break down the challenges associated with gun ownership as a medical patient, the grey areas in both federal and state law that make owning a gun so complicated for medical patients, and if you can legally have a gun as a medical cannabis patient in the first place.

Can You Legally Possess a Firearm as a Medical Cannabis Patient?

While we would love to give you a definitive answer here, unfortunately, it’s not that simple. Federal law is clear in its stance against cannabis of any kind, classifying it (incorrectly) as a harmful Schedule 1 drug with little to no medical benefits like cocaine or heroin, and citing the outdated Gun Control Act of 1968 as a basis to prevent anyone from possessing guns and ammunition if they “use or are addicted to cannabis or any other controlled substance.”

Simply put, the fed’s hard-line stance against cannabis, which it’s worth noting is based on Reefer Madness-era legislation and little to no actual scientific research, is still getting in the way for medical patients looking to enjoy their second amendment rights today.

So due to this confusing and outdated classification of cannabis on the federal level, and despite the fed’s continued and consistent hands-off approach to cannabis legality at the state level, medical cannabis patients aren’t officially allowed to own firearms of any type.

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Could Gun Laws For Cannabis Patients Change In The Future?

Unfortunately, the fed doesn’t seem likely to budge on the subject until cannabis is fully legalized federally. As recently as 2011, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) used The Gun Control Act of 1968 to justify their position that anyone who uses cannabis, regardless of state law, qualifies as an “unlawful user of” the controlled substance, and is therefore barred from owning a gun.

As we know, however, state law is much different. As of now, 37 states and U.S. territories have legalized and established some form of medical cannabis program for the citizens and in 2013, the Department of Justice (DOJ), under the Obama administration took the official stance of not interfering with marijuana operations that strictly complied with state regulations.

Federal law enforcement would instead narrowly focus on targeting:

  • marijuana revenue that appears to fund gangs;
  • distribution of marijuana to minors;
  • marijuana moving across state lines, moving from states where it is legal to states where it is illegal;
  • money laundering (using state-legal marijuana sales as a cover for illegal activity)
  • violence and firearm use in growing or distributing marijuana – this also gives the opportunity for law enforcement to arrest those who are both legal medical cannabis card and licensed firearm owners;
  • driving under the influence of marijuana or other negative public health consequences of using marijuana; and
  • marijuana possession or use on federal property (for example, national parks).

While that position was officially changed in 2018 under the Trump administration, it was almost entirely symbolic on the federal level. Despite the pivot in official guiding policy, the fed left enforcing cannabis laws to the states the same way they had before, where state and local police officers continued to arrest non-legal cannabis users for possession more than any other drug. The policy change mattered so little that in 2020 four states legalized it for personal use and three legalized for medical use while under these more restrictive guidelines.

With the Biden administration taking over, we’re likely to see the fed again officially shift the DOJ away from Trump-era guidance to be more in line with Obama-era rules, especially for an administration that’s already signaled their support for cannabis decriminalization.

Legal Grey Areas in Recreational Cannabis States

There is currently a legal grey area that has frustrated both recreational users and medical cannabis patients for years.

A recreational cannabis user in a state where recreational cannabis use is legal (Alaska, Arizona, California, Colorado, Illinois, Maine, Massachusetts, Michigan, Montana, Nevada, New Jersey, Oregon, Vermont, Washington) could both use cannabis and obtain a firearm.

This is because at your local licensed gun shop you will be asked the question: ‘Are you an unlawful user of, or addicted to, marijuana or any other depressant, stimulant, narcotic drug, or any other controlled substance?’ on the forms you’re required to fill out. It is perfectly legal for a user in a recreational state to check ‘no’ and have your weapon in five days.

Based on that question alone, and the state’s laws, a recreational user or a medical cardholder would not be considered an ‘unlawful’ user and therefore, it appears, would be eligible at a state level, but not at a federal level, where cannabis use is not legal. However, only recreational users are able to pass their federal background check in this manner.

Currently, states are required to register all medical cannabis patients in databases that are shared with federal law enforcement agencies. That means that when a federal background check is run by the licensed gun seller medical cannabis patients will be flagged while recreational users, who aren’t held in any type of database, don’t deal with the same issues.

This means medical cannabis users who are following the law and have gotten their cards via a licensed cannabis doctor have their access to their Second Amendment rights restricted simply for doing things the right way.

Getting a Gun as a Medical Cannabis Patient

Medical cannabis patients all over the country have filed lawsuits in several states to try to get these regressive, outdated, and inconsistent policies changed. In one case filed in 2016, a federal appeals court ruled that the 1968 Gun Rights Act did not violate the Second Amendment rights of a Nevada medical cannabis patient who was prevented from buying a firearm by a local gun store in 2011.

While individuals are fighting for their rights as cannabis patients in federal court, progress through the courts is a slow, uncertain process. With that in mind, however, while individual states can’t reverse or change federal government policy on their own, they do have a choice about whether they enforce those federal laws or not. We’ve seen examples of both states choosing to comply with and go against the outdated federal guidelines.

States could require medical cannabis patients to surrender all of the guns they currently have, as well as forbidding future purchases like the local government in Honolulu, Hawaii attempted unsuccessfully to do.

Getting a Gun as a Medical Cannabis Patient in Pennsylvania

For a cutting-edge example of a state ignoring the outdated and unfair federal guidance, look to the Keystone State. The state of Pennsylvania’s Department of Health, with support from the state’s pro-cannabis Governor, Lieutenant Governor, and State Attorney General, decided to no longer share access to their medical marijuana registry with the state’s law enforcement database, JNET. This change means that firearms dealers can’t identify whether or not the person is a medical marijuana cardholder, effectively bypassing the federal restrictions.

While the Pennsylvania state police website still maintains that it’s illegal for citizens to have both a medical cannabis card and a firearm legally, since they have no practical way of figuring out if medical patients actually have those guns it’s an unenforceable law.

In addition, while medical patients are still required to have a physical medical cannabis card that law enforcement and firearms dealers could ask for that would invalidate the purchase or possession of a gun, there are no laws on the books that require that patients keep their medical cards on them at all times. There’s also no law requiring firearms dealers to ask about or for medical cards at the time of purchase.

So far, Pennsylvania is the first state to take this step to protect the rights of medical patients and could represent a precedent for other states to do the same.

“Medical marijuana is an important medication for Pennsylvanians suffering from serious medical conditions,” PA Health Department spokeswoman April Hutcheson told the AP. “It’s essential that we treat medical marijuana as we would any other medication, and that we protect patient privacy in the process. As with any other health information, patient information regarding medical marijuana is not accessible to police.”

It’s possible for other states to take the same stance as PA in prioritizing their medical cannabis patient’s Second Amendment rights. While it’s obviously not ideal for states to ignore federal guidance on cannabis, it’s become clear in the last two decades or so that individual states care more about making money from recreational sales and providing patients with much-needed medicine than they do about continuing the outdated federal prohibition of cannabis.

Written by
Joe Evans
Joe Evans

Joe Evans is a journalist, writer, editor and contributor for Leafwell. He has, to date, more than 5,000 articles published online under his byline on topics like cannabis, local and National news, politics, automotive news, sports, pop culture and even a cult.

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