Medical Marijuana? Say Goodbye to Your Gun Rights

Medical Marijuana
Medical Marijuana

USA -(Ammoland.com)- House Bill 523, passed on September 8, 2016, legalized medical marijuana in Ohio.

The Ohio Medical Marijuana Control Program will allow residents of the state with certain qualifying conditions, and a recommendation from a physician, to register with the State of Ohio Board of Pharmacy for a patient ID card.

State agencies are still working on how to administer the program, but medical marijuana patient ID cards will be available no later than September 2018.

The question is, how does this affect gun rights in Ohio? The answer seems to be, if you use marijuana, you lose your gun rights regardless of state law.

Here’s the problem: while the state has made medical marijuana legal in Ohio, federal law continues to list marijuana as a Schedule I controlled substance. That means marijuana users can’t have guns legally.

In 2011, BATFE sent a letter to U.S. gun dealers that took a firm stance on the issue:

U.S. Department of Justice

Bureau of Alcohol, Tobacco,
Firearms and Explosives

Washington DC 20226

September 21, 2011

Open Letter To All Federal Firearms Licensees

The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has received a number of inquiries regarding the use of marijuana for medicinal purposes1 and its applicability to Federal firearms laws. The purpose of this open letter is to provide guidance on the issue and to assist you, a Federal firearms licensee, in complying with Federal firearms laws and regulations.

A number of States have passed legislation allowing under State law the use or possession of marijuana for medicinal purposes, and some of these States issue a card authorizing the holder to use or possess marijuana under State law. During a firearms transaction, a potential transferee may advise you that he or she is a user of medical marijuana, or present a medical marijuana card as identification or proof of residency.

As you know, Federal law, 18 U.S.C. § 922(g)(3), prohibits any person who is an “unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)” from shipping, transporting, receiving or possessing firearms or ammunition. Marijuana is listed in the Controlled Substances Act as a Schedule I controlled substance, and there are no exceptions in Federal law for marijuana purportedly used for medicinal purposes, even if such use is sanctioned by State law.

Further, Federal law, 18 U.S.C. § 922(d)(3), makes it 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 a controlled substance. As provided by 27 C.F.R. § 478.11, “an inference of current use may be drawn from evidence of a recent use or possession of a controlled substance or a pattern of use or possession that reasonably covers the present time.”

Therefore, any 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 (August 2008), Firearms Transaction Record, 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.

ATF is committed to assisting you in complying with Federal firearms laws. If you have any questions, please contact ATF’s Firearms Industry Programs Branch at (202) 648-7190.

Arthur Herbert
Assistant Director
Enforcement Programs and Services

The Federal government does not recognize marijuana as a medicine. The FDA has determined that marijuana has a high potential for abuse, has no currently accepted medical use in treatment in the United States, and lacks an accepted level of safety for use under medical supervision. See 66 Fed. Reg. 20052 (2001). This Open Letter will use the terms “medical use” or “for medical purposes” with the understanding that such use is not sanctioned by the federal agency charged with determining what substances are safe and effective as medicines.

So according to the BATFE, if you use marijuana, you can’t legally ship, transport, receive or possess firearms or ammunition. Period. State law doesn’t matter.

While this seems clear to those who pay close attention to such legal technicalities, it probably won’t be clear to many casual gun owners. Most will only know that marijuana is legal in Ohio, and it will never occur to them that they are violating federal law if they choose to participate in the medical marijuana program.

For example, the letter above mentions question 11.e. on ATF Form 4473. This is the form you fill out when you purchase a firearm and it is used to conduct a background check. It asks:

Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?

You may think that since Ohio has made marijuana legal, you can answer “no.” And if you’re like me, and you fill out this form frequently, you may just quickly check “no” on all the legal questions without reading them.

Which means you’ll probably miss the warning that was added to this question earlier this year:

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.

From long experience, I know that people don’t read carefully, and a certain number of gun owners are going to provide false information on this form and unknowingly become felons. This exposes you to felony charges under federal law, punishable with prison time and/or a hefty fine.

It’s difficult to predict how the medical marijuana vs. guns issue will play out. In some states, such as Hawaii, enforcement may be strict. According to the Miami Herald, The Honolulu Police Department has been sending letters to legal users of medicinal weed, telling them to surrender their guns within 30 days. However, other states, such as Ohio, may take a softer approach.

According to Ohio Board of Pharmacy spokesman Cameron McNamee, only qualified doctors will have access to the Ohio medical marijuana patient registry. Dayton Daily News is reporting that the National Instant Criminal Background Check System (NICS) won’t include this data.

Regardless, with 29 states and the District of Columbia legalizing medical marijuana, there is bound to be confusion over the issue. And no matter how you may feel about it, the fact remains that Ohio law and federal law conflict. At this time, guns and pot are like oil and water. Legally, they don’t mix.

Dean Rieck is Executive Director of Buckeye Firearms Association, a former competitive shooter, NRA Patron Member, #1 NRA Recruiter for 2013, business owner and partner with Second Call Defense.

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About the Buckeye Firearms Association:

For more than 12 years, Buckeye Firearms Association has worked to defend and advance the right of more than 4 million Ohio citizens to own and use firearms for all legal activities, including self-defense, hunting, competition, and recreation.

BFA works to pass pro-gun legislation, educate the public through ongoing media relations, provide high-quality firearm classes, and make available a wide variety of resources for gun owners. We even work with other pro-gun organizations around the country to help them further their mission.

And while anti-gun groups get their funding and support from wealthy activists or big corporations, BFA gets its funding and support from citizens like YOU who value their Constitutional rights and are willing to stand guard with us today and every day.
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ED KENT

Wife has a medical marijuana card and use medicinal weed. Does that in any way impact my gun ownership or my right to sell and buy firearms and ammo?

B Cash

Can states “share” the patient’s pot use (or issuance of a pot purchaser’s card) for medical purposes to the Feds or the state? How does HIPPA work under these circumstances? I thought personal medical information was private. Any thoughts?

dean

what is the nics listing???????

rappini

Just another way for the Government to restrict our freedom.

Michael

I’m just curious, it’s ok if you buy and drink alcohol, not sure if that’s classified as a control substance, but really how can anyone in their right mind believe it’s safer then marijuana. It’s been proven that More accidents and fatalities have occurred with the use of Alcohol then with marijuana, “true facts” I just don’t understand the logic with this rule. Is the next step taking away fire arms if you drink alcohol Not that I condone either one, it just makes no sense ! Of course we all like to keep everything safe and I know responsible… Read more »

tomcat

@ Michael first of all, alcohol is legal and pot isn’t. Not a very good answer is it? I know from watching an acquaintance go from pot to the hard stuff. He lost his job, wrecked his truck, tried stealing to support his habit and ended up in jail in another state because he was trying to steal liquid fertilizer so he could make meth. I took him to the classes every week to get him straightened out. Now he is a good citizen and does not do any kind of drugs but his teeth are very bad because of… Read more »

Wild Bill

@Tcat, It makes no sense to Michael because he has not seen what the gateway drug, marijuana, leads to. Merry Faith Based Christmas.

Lysander Spooner

Just go back to buying your weed from your local dealer and keep your guns too. Problem solved. You’re welcome.
There is no question to which ‘more government’ is the right answer.

Jim in Conroe

This is an interesting point. If you already own firearms, then begin using a controlled substance, do you have to give up your guns. This is different from the very clear prohibition against purchasing a firearm, if you use controlled substances. As far as I know, there is no such requirement with regard to the possession of a firearm that was purchased legally. It could be that the standard is similar to the use of alcohol by someone with a License to Carry in Texas. The law does not prohibit you from having a drink, while carrying, but it does… Read more »

tomcat

It seems real simple to me, you keep your pot and I’ll keep my guns.

dava golino

WELL SAID. Iwill keep my weapons any day over dope.PERIOD

Jim Thomas

This is very interesting. I am trying to find information regarding PTSD and firearm ownership. With all of the military veterans with PTSD and are not violent, just dealing with bad memories I get asked questions regarding seeking treatment or not. Any advice would be appreciated.

Jason

Did u ever get an answer

Jim in Conroe

As long as the federal government recognizes marijuana, medical or recreational, to be a controlled substance and keeps that question and explanatory comment on Form 4437, people are committing a federal felony if they improperly answer that question and then illegally purchase a firearm.

Advocates for the legalization of marijuana needs to take this in account as an unintended, but foreseeable consequence until the law is changed at the federal level.

dava golino

correct, sir, they are falsifying a government document. I live in a state that has made dope legal. we have more fender benders and I am waiting for insurance studies to show this increase in accidents. it seems that every other person exiting or entering their POV is engulfed in pot smoke. hopefully they are not at the range, too

joe martin

BATF will use any excuse, do anything they can, to prevent people from owning guns, up to and including lying and murder. Most of their regulations were created through Administrative Law, which they wrote and after publishing the intended regulation/law in the Federal Register and waiting for public comments (which they ignore) becomes law and is enforced. The Constitution only allows Congress to write laws, but all Federal agencies can and do create laws through the Administrative law process which is blatantly unconstitutional.