Cannabis and Gun Rights: a Showdown

 

Gun enthusiasts who admit to cannabis use, even state-legal medical cannabis, can’t buy guns. It’s another state-federal conflict rooted in federal prohibition, one that is gaining some attention as more red states embrace medical use, and one that might be eventually resolved in the courts.

The quandary is codified in a 2011 Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) guidance letter: Admit to cannabis use and give up the right to purchase a weapon. The alternatives: Don’t buy a gun, or lie about cannabis consumption at the time of purchase. The conflict, though, is well-known in gun circles and many don’t want to face an issue with federal law enforcement even though there haven’t been widely-covered cases brought by the ATF against state-legal users specifically for gun ownership. (ATF spokesperson Jan Kemp said Monday she could not respond to a question on the issue because of the federal government shutdown’s restrictions on her work duties.)

The issue came to a head in Hawaii in 2017, said Philadelphia attorney Andrew Sacks in an email to Cannabis Wire, when police said they would confiscate card holders’ weapons. After an outcry, though, police backed down. Sacks said he does not believe police have gone after cardholder weapons in other states.

State-legal cannabis users who are also hunters, veterans, and people who own guns for self defense face that dilemma. That’s why cannabis advocacy groups are closely watching a federal lawsuit brought in November by Matthew Roman, a medical cannabis physician and card holder in Pennsylvania who has also worked in Delaware.

The federal lawsuit in the Eastern District of Philadelphia hinges on Roman’s claim that his Second Amendment rights were violated in April 2018 when he tried to buy a gun at a Philadelphia-area gun store and was denied because he checked a box on the application form admitting he was a medical cannabis cardholder and user. Pennsylvania legalized medical cannabis in 2016 and became available to cardholders in 2018.

The lawsuit comes at a time when medical cannabis is beginning to expand to places where gun ownership rates are high,such as Oklahoma and Missouri, with pushes coming in South Carolina and Texas. Overall, the last decade has seen an increase in guns manufactured and sold across the country.

John Weston, Roman’s Philadelphia-based attorney, believes his case stands on a stronger legal footing than a 2016 Ninth Circuit decision, which stemmed from a confusing situation. The plaintiff in the case, S. Rowan Wilson, said she obtained a medical card in Nevada as a political statement but never actually used cannabis. Weston’s case, he said, will allow the court to rule on a  more straightforward set of facts : his client was denied a gun at purchase for his admitted cannabis use and the lawsuit emphasizes that his client needs cannabis as a medical necessity.

“While you may be increasing some sort of a problem with society with recreational use, you’re clearly not with medical marijuana use,” Weston told Cannabis Wire. “You’re perfectly legal treating yourself with Ambien or Percocet, and even though those are far more dangerous drugs, they don’t deprive you of any constitutional rights.”

The specific question on the federal form that gun buyers must answer goes this way: “Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug or any other controlled substance?”

Just in case users of medical or adult-use cannabis in states that have legalized are wondering about the intent of the question, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) added a statement in boldface type: “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.”

Meanwhile, despite the surge in state-legal cannabis, the ATF shows no sign of changing the rules. Jan Kemp, the ATF spokesperson, told Cannabis Wire in a recent interview before the shutdown that the issue is simple: Cannabis remains federally classified as among the most dangerous forms of narcotics, Schedule I, and is banned under the Controlled Substances Act. She said she did not believe the agency would reevaluate its stated 2011 position even as more states have legalized cannabis. “As far as I know, as long as it’s listed as a controlled substance, then the laws are the laws,” she said.

Zoë Patchell, president of the Delaware Cannabis Advocacy Network, told Cannabis Wire that many in Delaware won’t give up their guns and a constitutional right to have them for the sake of applying for a medical cannabis card. According to Patchell, other medical card holders simply won’t admit it when applying for a gun.

“We’re hearing from a number of individuals, especially veterans, that won’t seek a cannabis card protection because it means giving up their Second Amendment right,” Patchell said. In some cases, she said, that means eschewing medical cannabis altogether and seeking prescription painkillers or other treatments “whether it’s addictive or harmful to their bodies or not.”

Still, neither gun rights advocates nor pro-cannabis groups are particularly vocal about the issue. And for some members of  Congress who have pushed various cannabis reforms or support for access, specifically pushing the ATF on the cannabis-guns conflict hasn’t emerged as a priority.

Florida Republican Representative Matt Gaetz, a US House member who has touted his “A+” National Rifle Association rating and also pushed various forms of cannabis reform, told Cannabis Wire that he hasn’t sought to address the guns-cannabis conflict. He said he’d rather focus on broader reforms. If cannabis prohibition is repealed, issues like the gun rights conflict will be resolved naturally, he said.

“Strategically, I think the most important thing is to democratize,” Gaetz said. “The more people have access, the more we have to confront these other ancillary issues. I spend my day fighting for access.”

Gaetz said he has not spoken with the NRA about the issue. Asked why the gun rights group hasn’t pushed the issue, Gaetz said: “I think that it’s likely because more of their members are experiencing other types of more acute challenge with their Second Amendment rights.” He said as more states move toward cannabis legalization, the NRA, like any other member-driven organization, will face pressure from members facing the issue.

The NRA did not respond to two requests for comment.

With both gun rights groups and cannabis groups focused primarily on other issues, the courts may decide the issue.

Karen O’Keefe, state director for the Marijuana Policy Project, said she believes the ATF could loosen its stance. In the meantime, though, she’s opposed to cannabis users losing what is otherwise considered to be a constitutional right. “Our focus is marijuana policy, not gun policy, but they shouldn’t be denied a right that everyone else has,” she said.

Weston, the attorney pursuing the federal lawsuit, said a federal court case can take years. While the courts aren’t necessarily the preferred route to resolve what could be considered a political issue, he said his lawsuit offers the best chance to clarify the constitutional conflict as cannabis remains, in federal law, in the most restrictive category of banned substances. “I think it would do everyone a huge favor if the DEA or Congress or both would get marijuana off Schedule I,” he said.  “But that’s a political thing.”

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Cannabis Wire
Cannabis Wire
Cannabis is rich territory for serious journalism. Legalization raises urgent questions about regulation and law, technology and taxation, science and business, criminal justice and individual liberties. It stands at the intersection of a booming billion-dollar industry and promising advances in medicine, all while remaining federally illegal.

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