USA – -(Ammoland.com)- Welcome back to The Legal Brief, the show where we CRUSH the various legal myths and misinformation surrounding various areas of the gun world. I’m your host Adam Kraut and today we are talking about marijuana and guns or how you can’t have both.
For some reason the question about medical marijuana and firearms ownership continues to flood my inbox. So, hopefully this episode will put to bed any misconceptions there might be. Remember, as always, we are dealing with two sets of laws, both federal and state.
A number of states have been passing medical marijuana initiatives. In fact, as of the airing of this episode, the District of Columbia and 29 states have legalized medical marijuana. But I wouldn’t be rushing to your local head shop to stock up on paraphernalia just yet. Well, not if you want to be able to legally possess firearms and ammunition.
While many states have allowed their residents to utilize marijuana for medicinal purposes, it still remains illegal at the federal level.
The result? If you use marijuana, you are a prohibited person. And I know what some of you are going to say, but Adam, the 4473 says “Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?” and my state legalized it.
If you’re asking me that question, it is safe to say you probably haven’t bought a gun since January of 2017, because the new form even provides very clear warning right underneath the question in bold print. It says “Warning: The use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medicinal or recreational purposes in the state where you reside.”
The 9th Circuit addressed the issue of an individual with a medical marijuana card and an attempted firearms purchase in Wilson v. Lynch. We are only going to discuss the Second Amendment aspect of her claim. Wilson obtained a medical marijuana card in the state of Nevada. Prior to her attempted purchase of a firearm ATF had released an open letter to FFLs which stated in part “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.”
Wilson went to her local gun shop where the owner stopped her from completing the form prior to question 11.e since he knew she had a medical marijuana card and refused to sell her a gun. Wilson in turn sued the Government alleging, among other things, that the law, regulation and open letter violated her Second Amendment right.
The Court employed a two step analysis, which first looked at whether the challenged law burdened conduct protected by the Second Amendment and then applied an intermediate scrutiny analysis to determine whether the law could pass constitutional muster. Remember, intermediate scrutiny requires that the government’s stated objective be important and there must be a reasonable fit between the challenged regulation and the asserted objective.
With respect to the first part of the test, the inquiry was straightforward. Because Wilson insisted that she was not an unlawful drug user, a convicted felon, or a mentally-ill person, she is not a person historically prohibited from possessing firearms under the Second Amendment. As such, the Court determined the law, regulation and open letter burdened her Second Amendment right and proceeded to step two of the analysis.
In step two, the Court determined that “[t]he connection between these laws and that aim requires only one additional logical step: individuals who firearms dealers have reasonable cause to believe are illegal drug users are more likely actually to be illegal drug users (who, in turn, are more likely to be involved with violent crimes).”
It went on to state that it was “reasonable for federal regulators to assume that a registry cardholder is much more likely to be a marijuana user than an individual who does not hold a registry card.”
The Court found that the degree of fit between the law, regulation and open letter and their purpose of preventing gun violence was reasonable, satisfying the intermediate scrutiny standard.
In short, unless the Federal Government changes the law relating to marijuana’s legality or the ability of a medicinal marijuana user to possess firearms, anyone who uses marijuana cannot possess firearms and ammunition.
Hopefully that clears up the smoke surrounding this issue. If you guys liked this episode, you know what to do, hit that like button and share it around with your friends. Be sure to check out my website adamkraut.com. Remember, if you have a question you want answered on this show, head over to The Legal Brief section on theguncollective.com. Don’t forget to like The Gun Collective on Facebook, Instagram, YouTube, Full 30, Snap Chat and wherever else you can catch us on social media.
And as always thanks for watching!
Links for this episode:
- Medical Marijuana – States which have legalized : https://medicalmarijuana.procon.org/view.resource.php?resourceID=000881
- ATF 4473 : https://www.atf.gov/firearms/docs/4473-part-1-firearms-transaction-record-over-counter-atf-form-53009/download
- 18 U.S.C. 922(g)(3) – Unlawful Acts : https://www.law.cornell.edu/uscode/text/18/922
- 27 C.F.R. § 478.11 – Unlawful User of or Addicted to a Controlled Substance : https://www.law.cornell.edu/cfr/text/27/478.11
- Wilson v. Lynch : https://cdn.ca9.uscourts.gov/datastore/opinions/2016/08/31/14-15700.pdf
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@ RattlerJake or should that be Prattlingjerk? You are spewing a bunch of allegations that are nothing but pure calumny. In fact you are guilty of violation one of the original 10 Commandments – Bearing false witness. Point 1 _ The Catholic Church moved to Rome -https://catholicbridge.com/catholic/why_did_the_catholic_church_move_to_rome_from_jerusalem.php Point 1 (part 2) -The Catholic Church does not believe any statue or image has any power in and of itself. The beauty of statues and icons move us to the contemplation of the Word of God as he is himself or as he works in his saints. And, according to Scripture, as… Read more »
I forgot to include in my first posting about your stating “You profess your sins to a man, and bow to the pope” – Apparently your knowledge of the Gospel is severely lacking because when Christ sent the Disciples out He commissioned them thusly – ‘Christ told the apostles to follow his example: “As the Father has sent me, even so I send you” (John 20:21). Just as the apostles were to carry Christ’s message to the whole world, so they were to carry his forgiveness: “Truly, I say to you, whatever you bind on earth shall be bound in… Read more »
I will not waste time debunking your lengthy rants that you obviously have cut and pasted and provide because many others have outed catholicism to you before, other than to give an example: When discussing judgement, you continuously make reference to what happened vs what is prophesied as though they are the same, and that there are two judgements – Christ is quite clear that there will be ONE JUDGEMENT! And you make excuses for why you are right when what scripture says is NOT what you claim. What Jesus DID during his time on earth is not the same… Read more »
I was a forman on a 75+ man construction crew for a few years. 80 percent of my accident reports were alcohol related. I have plenty of experience with alcohol & weed over the last 50years. No question about it, you are at your best when you are not under the influence of any drug. The fact is people do drink and do drugs for whatever reason, no matter what the government says. If the person next to me had a loaded fire arm and i had to choose if they were a drunk or a stoner. I would choose… Read more »
Just another instance of the BATFE making law. The Federal prohibition is not from Constitutional law (passed by Congress and signed by the President), but the result of Administrative law (made up, approved and applied by a Federal agency, in this case, BATFE), which has the same affect as Constitutional law, but is not and therefor, unconstitutional. This is how BATFE, USFS, BLM, DEA, etc. create the very laws they enforce and it is wrong!
Then alcohol use should mean no firearms. No diff.
Now that this Opiate Scare is in Full Effect, we have Physicians yanking Patients off of their longtime legitimate Pain Medications and either telling them Screw Yourselves, or giving them some alternatives that don’t work! It’s the same old story in America, a few Jackass Abusers Screw up the whole system for everyone! So now we have all of these wonderful drugs made to give comfort to Legitimate Patients in need, and The Government has created a ‘Stigma’ for both Patients and Doctor,s so that the Patient is screwed out of getting their Pain RELIEF! I’m NOT stating there isn’t… Read more »
Two problems with this court’s decision: first, in this specific instance, the putatuve gun buyer who had the weed card declares she had not every used it. No direct evidence was presented at trial to counter this claim, Thus she was declared an “illegal user” with no proof whatever, only the speculation based on supposition based on likelihood her behaviour was similar to other individuals’ behaviour… a clear case of the INDIVIDUAL being denied die process. Second, “illegal user” is a farce anyway, as FedGov have NO authority to regulate or control anything we put into our mouths.. a clear… Read more »
Democrats: pot, no guns.
Republicans: guns, no pot.
This is one instance where “Republicans” are STUPID!!!!! And especially Christians!!!!!! Prohibition of Cannabis is not only unconstitutional but is based on pure ignorance! Hemp is the most versatile plant on earth, with uses for clothing, paper and wood products, and medical value. Misuse of anything by a few, does NOT constitute a right or authority of government to ban the rest from using it for valid reason! The Christian majority have helped the government to prohibit a GOD given herb, of immense medical and commercial benefit, due to their gullibility!
@Rattlerjake you are prejudiced against Christians. I am a preacher and do believe in marajuana use in its right way and there are many. I am also a republican who knows when little snots like yourself are trying to push your agenda down everybody’s throats. If I am wrong then lighten up man because you don’t know what you are talking about. I am from a very conservative state and you are just bloviating. There are many of us who used marajuana when you were probably still crapping green if you were even a thought in your daddy’s mind. Ha… Read more »
Just to clarify I don’t use pot and haven’t since 1981 when I started my ministry. I don’t use pot because it is illegal. We must fight in the right spirit and you spouting off things like you did was just not right.
@PPP, I do not believe that “Christianity” takes a position on pot. I believe that “Christianity” takes a position on having a personal relationship with Christ.
@Wild Bill You are only half right! It’s NOT Christianity taking the position, it is individual or groups of Christians who take incorrect stands on certain issues because they do as directed by their pastors. Go to most “Christian” assemblages and just mention the legalization of cannabis and they will start quoting misinterpreted scripture! Ex: Our bodies are the temple of God and we should not do anything to defile it! They have been indoctrinated with the “BAD” side of cannabis, an if you ask them they can’t tell you ONE GOOD PROPERTY OF THE PLANT! And all the while… Read more »
Christianity takes a stand on trying to do what is right. I am not an activist but just stating my opinion to people like this Rattlerjake who misuses the bible to say or twist whatever he wants to say. I know that nothing in and of itself is evil or holy it’s as the bible says how you yield it like a gun or a knife. It can be used for evil or good. It can cut up food for my little kids in Haiti or it can murder babies not born yet. Guns the same. Same for music. If… Read more »
You’re wrong!!! I am a Christian and I’m tired of seeing the pseudo-Christians falling in line with the corruption of government. God created cannabis for us to use (not abuse), it is in the Bible and called “Kaneh bosm” in the old and new testaments; and it is thought that the oil Jesus was anointed with was cannabis oil. Christians have been propagandized by the catholic church and zionism on many subjects that are contrary to God’s word! God has told us that MANY WILL BE DECEIVED and that includes many Christians. Few will enter at the narrow gate! By… Read more »
You sound like the very thing you are railing against. I’ll bet you’re one of them non-denominational types who thinks that all their sins are forgiven and they’ll go straight to heaven. You sound like a heretic to me, and I’m a practicing Catholic (thank you very much for the negative plug) whose never heard the Church or Rome lead anyone down the path to Perdition. We trace our Church all the way back to the original Twelve Apostles – how far back does your Church’s lineage go – back to where someone didn’t like what someone else believed and… Read more »
I don’t want to go to prison for smoking pot although it can be used for good. I have spent time in prison and lost my freedom before Christ in my life and I KNOW what it’s like to lose freedom and we must pick our battles and not be stupid. My main ministry is to bring people to Jesus because He is the only peace and salvation. I don’t agree with all you say and some of what you say I do but you being 60 my mistake. I don’t care to admit my wrongs I am just sayin… Read more »
@Pistol Packin Preacher – I didn’t say to just go and smoke pot and ignore the “law”, that is assuming on your part, but you should be fighting these illegal laws at every opportunity. If more people did so we would not be inundated with so many unconstitutional and illegal laws! Picking your battles is great in theory, but not in practice. “WE” should be fighting everything we can because when “you give them an inch they will take a mile”, which is what they have done! A great example is where an individual in Tennessee is fighting the state… Read more »
@VE Veteran – Old Man’s Club – Heresy? Maybe you should actually research your Catholicism! You obviously don’t know the history of the catholic church, which was created by the Roman government as a way to control the “CHRISTIANS”! Your religion breaks the laws of God! Jesus said “I am the way, the truth, and the life: no man cometh unto the Father, but by me.” Yet you profess your sins to a man and you bow to a pope! You worship false gods, elevate humans (sainthood) to God’s level because of their worldly “accomplishments, and Catholicism violates the biblical… Read more »
What’s even crazier in the ‘requirements’ end guy’s?
I have a CCW from Nevada and Utah, renewed.
And I’ve now had medical MJ cards in 2 states.
So what is this about ‘requirements’?
Hmmmm
The demon weed…everyone knows it drives people to murder…innocent women to abandon their morals…and more. Let’s go have a drink, smoke some cigarettes, and finish off with some strong coffee or energy drinks while we discuss the dangers of marijuana.
Does the phrase “shall not be infringed upon mean nothing”? During Prohibition were liquor drinkers banned from owning firearms and ammunition? If Federal law supersedes State law, then how can states enact gun laws that are in direct conflict with federal gun laws?
@Chuck M, Some state level politicians have determined that they can get more votes from the pot heads if those politicians seem to be fighting for them (potheads). It is a false hope, but the druggies don’t know that.
There was no ATF and no background checks during prohibition. As a matter of fact, the ATF was the Bureau of Prohibition. The Bureau of Prohibition was reorganized into the ATF at the end of Prohibition. You don’t think federal agencies just go away, do you? …they live forever. It’s interesting that J.Edgar Hoover wanted no part of the ATF. The criminalization of marijuana in the US is also tied to prohibition. Harry Anslinger was in charge of the Department of Prohibition and at the end of prohibition, his department was going to have nothing to do. He pushed the… Read more »
I dont have anything against marijuana use or people who use it, but it boggles my mind that that is treated as being better than a firearms purchase. No qualification to use, no coursework, minimal fees, open carry and use (ok only partially).
@jh45gun S sir you are EXACTLY right
I wonder if Willie Nelson know you used hid Photo with his permission??
May I suggest a rework.
Please contact Attorney Chaz Rainey of Hambrick law for comment, corrections and additions.
We shall be starting again in another circuit.
Sincerely,
S. Rowan Wilson, MBA
Plaintiff and former cannabis shop owner in Nevada
https://assets.documentcloud.org/documents/3877557/6-26-17-Peruta-Dissent.pdf The Court’s decision to deny certiorari in this case reflects a distressing trend: the treatment of the Second Amendment as a disfavored right. See Friedman v. Highland Park, 577 U. S. ___, ___ (2015) (T HOMAS, J., dissenting from denial of certiorari) (slip op., at 6) (“The Court’s refusal to review a decision that flouts two of our Second Amendment precedents stands in marked contrast to the Court’s willingness to summarily reverse courts that disregard our other constitutional decisions”); Jackson v. City and County of San Francisco, 576 U. S. ___, ___ (2015) (same). The Constitution does not rank… Read more »