Smoking Joints and Smoking Guns

by Aaron Delgado
October 26th, 2018

The Truth About Medical Marijuana Use & Gun Ownership

Between differing news articles and ever-changing laws, it can be difficult to know what is really true about owning or purchasing a gun and having a medical marijuana card. To provide clarity to our fellow Floridians, our criminal defense lawyers uncover the truth about medical marijuana use and owning a gun in Florida by answering five common questions about the topic.

1. Are Floridians forced to choose between medicine and their Second Amendment rights?

The short answer is “yes,” as the Second Amendment protects one’s ability to purchase a firearm. This unfortunate paradigm exists for prospective Florida gun purchasers who possess a Florida medical marijuana card. Common sense would lead most of us to wonder that if a supermajority of Floridians agreed to recognize the “right” to medical legalization of marijuana, why would that approval compromise a separate and distinct constitutional guarantee - the right to bear arms? Under the federal Controlled Substances Act, marijuana is a Schedule 1 substance. According to the federal government, a drug classified as Schedule 1 means that:

  • The drug or other substance has a high potential for abuse.
  • The drug or other substance has no currently accepted medical use in treatment in the United States.
  • There is a lack of accepted safety for use of the drug or other substance under medical supervision.

So, the federal government takes the position that smoking a joint poses the same risk as shooting heroin, dropping acid (LSD), using any form of MDMA, or tripping on mescaline. Since the federal government regulates firearms through the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) it may rely on marijuana’s Schedule 1 classification in considering whether to allow marijuana users to possess a firearm. As a result, the ATF can and does deny the sale of firearms to those who are issued state medical marijuana cards.

Under 18 U.S.C. § 922(g)(3), no person "who is an unlawful user of or addicted to any controlled substance" may "possess... or ... receive any firearm or ammunition.” In addition, it is unlawful for "any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person ... is an unlawful user of or addicted to any controlled substance.” Id. § 922(d)(3). See Wilson v. Lynch, 835 F.3d 1083 (2016)

2. Can Florida medical marijuana users buy firearms?

Licensed dealers of firearms are required to complete ATF Form 4473 in connection with every firearm transaction. Since the form requires that the seller deny a sale to anyone who uses a controlled substance, medical marijuana card holders may not purchase firearms.

Agencies like the ATF often issue advisory opinions concerning how the agency will apply a specific law in a particular situation. On September 21, 2011, the ATF did just that with its “Open Letter” to licensed firearms dealers. The Open Letter states:

[A]ny person who uses or is addicted to marijuana, regardless of whether his or her state has passed legislation authorizing marijuana use for medicinal purposes, is an unlawful user of or addicted to a controlled substance, and is prohibited by Federal law from possessing firearms or ammunition. Such persons should answer "yes" to question 11.e. on ATF Form 4473 ... and you may not transfer firearms or ammunition to them.

Further, if you are aware that the potential transferee is in possession of a card authorizing the possession and use of marijuana under State law, then you have "reasonable cause to believe" that the person is an unlawful user of a controlled substance. As such, you may not transfer firearms or ammunition to the person, even if the person answered "no" to question 11.e. on ATF Form 4473.

The Open Letter says it all.

3. Has anyone ever challenged the ATF’s position on sales of firearms to medical marijuana?

In 2011, Nevada resident S. Rowan Wilson lost her challenge of the ATF’s position on firearm sales to medical marijuana card holders. Unfortunately, her case set a precedent affirming the federal government’s draconian position on medical marijuana.

Ms. Wilson obtained a medical marijuana card as a form of political speech. In her lawsuit, she did not formally allege she used marijuana. The lack of this allegation set up an interesting legal challenge, as it allowed her to argue that the ATF’s Open Letter and 18 U.S.C. § 922(g)(3) violated her First Amendment Right to political expression as well as her Second Amendment right to bear arms. Ultimately, the federal court found that preventing Ms. Wilson’s ability to purchase a firearm did not severely burden her right to self defense under the Second Amendment because Ms. Wilson could relinquish her medical marijuana card and buy a gun at any time.

We could assume that the Court’s consideration of a claim of true medical necessity, instead of only implied medical use, would lead the Court to a different conclusion. However, that assumption would fail just as Mr. Bellamy’s argument did in United States v. Rickey Bellamy, Jr.

4. Can Florida medical marijuana users possess a firearm?

In 2015, Federal agents raided Mr. Bellamy’s home. Upon the execution of a search warrant, the government found evidence which suggested Mr. Bellamy was in possession of a firearm while being a marijuana user and Michigan medicinal marijuana card holder. The Court affirmed Mr. Bellamy’s conviction by relying on the precedent set in Ms. Wilson’s case.

Mr. Bellamy’s testimony that he used the marijuana for back pain and for help sleeping was not even addressed in the Court’s opinion. Instead, the judge dismissed the claim by insisting that no doctor can lawfully prescribe marijuana under federal law.

The lesson here is: Stay away from federal agents. Federal courts completely fail to recognize the legitimacy of state-sanctioned medical marijuana use. The local cops, on the other hand, do not have the authority to enforce federal law. Thankfully, Florida’s medical marijuana laws prevent a law enforcement officer from arresting a person who holds a valid medical marijuana card. Humans, unlike subatomic particles, cannot be in two places at once. The reality, however, is that you can break the law (federal law) and follow the law (Florida state law) at the same time. If it seems like quantum physics may be easier to make sense of than this ridiculous state/federal schism, you’d be right.

Thankfully, they only gave poor Mr. Bellamy probation for the heinous crime of being a gun owner and a medical marijuana user. Perhaps the fact that he was already on probation when federal agents obtained probable cause to search his home was the driving force of his prosecution. We can only hope that federal agents and federal prosecutors will use discretion in the cases they choose to pursue under 18 U.S.C. § 922(g)(3). Fortunately, for now, it seems that a calculated federal crackdown is a perceived threat that has not yet become a reality.

5. Can Florida medical marijuana card holders obtain or maintain a Concealed Weapons License?

The eligibility requirements for a Florida Concealed Weapons License do not exclude a medical marijuana card holder. Furthermore, Florida’s medical marijuana law prevents civil and criminal penalties for marijuana possession if a person has a valid Medical Marijuana card.

Nevertheless, the Concealed Weapons License eligibility requirements do exclude those with a conviction for possession of a controlled substance in addition to those with a record of substance abuse. A review of news articles and legal publications did not uncover any discussion of a Florida case where a medical marijuana card holder was denied a Concealed Carry Permit. However, a valid Concealed Weapons License would not prevent federal prosecution for possession of a firearm, like in Mr. Rickey’s case, or being denied the purchase of a firearm, like in the case of Ms. Wilson.

If you are a medical marijuana card holder who has been denied a Concealed Weapons License, we would appreciate the opportunity to hear your story and see if we can help. For now, it seems that medical marijuana card holders and concealed carry permits who actually possess firearms would be in violation of federal law. However, those coming into contact with a state law enforcement officer while possessing both medically sanctioned marijuana and a legally owned and possessed firearm, have nothing to fear from state law enforcement officers or state prosecutors.

That being said, if a federal prosecutor gets a hold of your case, please give the attorneys at Delgado & Romanik a call at 386-255-1400.

The Truth About Medical Marijuana and Firearm Ownership

In 2018, nothing should surprise us. So, if particle physics seems to make more sense to you than the illogical schism between state law sanctioned medical marijuana use and federal marijuana prohibition, you would not be alone.

At this time, it appears that federal prosecutions of medical marijuana patients possessing guns seems to be directed at those who are on a federal agent’s radar for something other than merely possessing a gun and being a medical marijuana patient. However, a change in policy directive in response to a presidential tweet, or other political reasons, could result in people actually being targeted.

State law enforcement agents and state prosecutors are prevented from taking criminal action against those who hold a medical marijuana card and firearm merely because they are in possession of both. Yet unfortunately, the end to federal marijuana prohibition rests with congress. Until congress agrees to re-schedule marijuana, the ATF, the FBI, the DEA, and the rest of the federal government are legally justified in denying the sale of a firearm to a medical marijuana card holder, and can arrest and prosecute those in possession of marijuana and a firearm.

Regardless of whether you consider marijuana an effective medicine or a public nuisance, I encourage people to explore the fact that the DEA, the agency which enforces drug crimes at the federal level, is also the agency charged with the responsibility of scheduling or re-scheduling controlled substances.

As today’s political and social climate seems to be warming towards a closer examination of the role government plays in our lives, we need to realize that the entity (the DEA) that has the power to propose a regulation to de-criminalize or re-schedule marijuana is also the same entity that derives a significant portion of its budget from enforcing federal marijuana laws. If this doesn’t seem right to you, it shouldn’t! If you are offended that the federal government can potentially prosecute Floridians for something that 71% of Floridians agreed to include in our constitution, you should be!

If you find yourself being targeted, arrested, or prosecuted for violating any federal or state marijuana or firearms laws, give the experienced criminal trial attorneys at Delgado & Romanik a chance to defend your rights. Call us 24/7 at 386-255-1400.