Gun Ownership and Marijuana Use and Laws

Whether you agree or disagree, there are some interesting facts about the current status and relationship of marijuana ownership and use relative to owning and using guns. There are many different and hugely conflicting marijuana state laws and misunderstandings about the existing, related federal government controlled-substances laws and gun possession in the United States. So, there are many considerations in the complex relationships among the legalities of gun ownership, possession, and use and legalized marijuana for both recreational and medical uses.

Without any doubt today, the marijuana business, related taxes and crime, and personal attention to it is huge. Money seems to be a motivating factor for many states and individuals, perhaps to the detriment of individuals. It is a major industry, and it is estimated to involve many folks (e.g., growers, retailers, government employees, users, and non-users) and many dollars in the U.S. Recently, while walking the beach boardwalk on vacation near Santa Monica, California, I saw many marijuana stores offering medical marijuana evaluations and cards and “weed” recreational dispensaries, some even with deliveries. I was approached about the “product,” surely by a legal and licensed street vendor? (For clarification, I was not looking to buy anything there and have never used marijuana for any purpose.)

Note: There are significant differences among the state marijuana laws, and there are conflicts between existing federal “marijuana” laws and state “marijuana” laws, which affect gun ownership.

Since it is so very important to place these considerations in context with the different state laws and the related federal laws for gun ownership, I want to give you a brief overview of the states and their laws and then the related federal laws, before getting into the relationship between guns and marijuana.

Marijuana: Recreational, Medical, and Broad State Laws

As of June 2019, there are eleven states and the District of Columbia that have legalized marijuana for recreational use. Over thirty states have legalized it for medical use. About seventeen states have no broad laws legalizing marijuana. Keep in mind that the included states change frequently, and even at this moment, several are in the process of changing their laws, definitions, and status about marijuana. State marijuana laws vary considerably about the qualifying medical conditions for use, the process of obtaining it, age requirements, definitions, commercial versus personal applications, etc.

Note: Do a current check of your state’s laws to ensure the legality, validity, and requirements for possessing and using marijuana and controlled substances for your purpose.

11 States that Legalize Marijuana for Recreational Use

Alaska, California, Colorado, Washington, Oregon, Massachusetts, Michigan, Nevada, Vermont, Maine, and Illinois (very recently)

Some States that Legalize Medical Marijuana Use

Arizona, New Mexico, Utah, Montana, North Dakota, Oklahoma, Louisianna, Arkansas, Florida, Alabama, Missouri, Hawaii, Ohio, Pennsylvania, New York, New Jersey, Maryland, Minnesota, West Virginia, Connecticut, Delaware, Rhode Island, New Hampshire, Alaska, California, Colorado, Washington, Oregon, Massachusetts, Michigan, Nevada, Vermont, Maine, and Illinois

Some States have No Broad Laws Legalizing Marijuana

Texas, Kansas, Kentucky, Tennessee, Georgia, Virginia, North Carolina, South Carolina, Nebraska, South Dakota, Wyoming, Idaho, Indiana, Wisconsin, Mississippi, and Iowa

Before I address the relationship between marijuana and possessing and using guns, I want to share with you some interesting things I discovered in my research.

Interesting Marijuana Recent Facts, Figures, and Events

• In June 2019, the Colorado marijuana tax revenue surpassed $1 billion, and sales were over $6.5 billion since legalization. From FY 2017 to FY 2018, the Department of Revenue reports show that retail marijuana sales tax (only for recreational use) increased from $12.5 million to $20.4 million. Colorado charges a 2.9% sales tax on medical sales only and both a 15% special sales tax and a 15% excise tax on retail purchases. Big bucks!
• Colorado has 2,917 licensed marijuana businesses, employing 41,076 licensed individuals in the industry, reported in June 2019.
• Kroger chain of supermarkets announced in June 2019 that they will begin selling CBD oils, lotions, and other related products in 17 states.

Notes: CBD stands for cannabidiol. It is the second most prevalent of the active ingredients of cannabis (marijuana). While CBD is an essential component of medical marijuana, it is derived directly from the hemp plant, which is a cousin of the marijuana plant. According to Dr. Peter Grinspoon of Harvard Medical School on June 5, 2019, while CBD is a component of marijuana (one of hundreds), by itself, it does not cause a “high.” CBD’s current exact legal status is in flux, and the federal government now considers CBD in the same class as marijuana.

State laws vary in their restrictions, and researchers are conducting CBD trials. To this layman, the legality of CBD seems to depend in part on whether the CBD comes from hemp or marijuana. Some CBD manufacturers have come under government scrutiny for indefensible claims that it is a cure-all for cancer and other medical conditions, without documented and substantiated research and evidence. CBD is mostly an unregulated supplement now, so it may be challenging to know exactly what you are getting, so it is important to talk to your medical doctor for your specific situation. It may affect your other medications.

• According to the city of Los Angeles, California regulations and law, adults age 21 or older can buy, consume, possess, and grow cannabis up to one ounce of cannabis and up to 8 grams of concentrated cannabis. Individuals can also plant, harvest, dry, and process up to 6 cannabis plants in your private residence or on your residence grounds. If you are 18 or older and have a physician’s recommendation and a valid county-issued medical marijuana identification card, you can possess up to 8 ounces of dried cannabis and up to 6 mature or 12 immature cannabis plants, unless specified higher by physician’s recommendation.
• Starting in 2020 in Nevada, it will be illegal for employers to refuse to hire applicants based on pre-employment positive marijuana drug tests.
• Illinois just recently became the first state where legislators, not voters, legalized cannabis sales for recreational and medical uses.
• New York City wants to ban marijuana testing of job applicants.
• Maine passed a law that any physician at his or her own discretion may “recommend” cannabis to any patient. Federal law prohibits medical doctors from writing marijuana prescriptions.
• California, Colorado, Maryland, Oregon, Illinois, and New Hampshire have made it easier for past offenders to have their sentences reduced and records expunged, e.g. for about 750,000 criminals in Illinois alone.
• California voters approved Proposition 64 in 2016 which allows recreational and medical marijuana use, significantly reduces penalties for cannabis offenses and dramatically increases access to CBD and THC in cannabis products. There is a state Cannabis Control Bureau, a state Manufactured Cannabis Safety Branch, and a state Cannabis Cultivation Licensing Division. And there are many county and city administrative employees and departments for marijuana, etc. More Taxes and the tradeoffs.

Quote: The CEO of the California Cannabis Marketing Association says “if you are under 21 and have a Medical Marijuana Card and are purchasing marijuana from a licensed business, you can speak to your local budtender about products that may be right for you.”

• California’s legal marijuana market has not performed as state officials, and the cannabis industry had hoped. Retailers and growers say they’ve been stunted by complex regulations, high taxes, and decisions by most cities to ban cannabis shops, as reported by the Los Angeles Times in December 2018. And there is a proliferation of illegal shops selling marijuana, according to an administrator with the United Cannabis Business Association. At the same time, many residents are going to city halls and courts to fight pot businesses they see as nuisances, and police chiefs are raising concerns about crime triggered by the marijuana trade.
• Legal sellers of marijuana in Los Angeles, California, for example, must pay a 15% state excise tax, a 10% recreational cannabis tax, and charge the 9.5% sales taxes, per a shop owner and the Los Angeles Times. I wonder if there are any unregulated and illegal sales?
• In Washington state, marijuana sales surpassed $1 billion in FY 2017, and the state collected about $315 million in excise tax revenue. The revenue was primarily used to fund Medicaid insurance for low-income residents, according to the Center for American Progress.
• The New York Times reported on April 29, 2019, that the “illegal pot market is booming in California despite legalization”… it is getting worse, not better. Deputies seized in just one month (April 2019) $5 million in cannabis oil.
• Maritza Perez reported on the Center for American Progress website on May 20, 2019, that the New York Times reported that black and Hispanic New Yorkers were arrested on low-level marijuana charges at 8 times and 5 times the rate of white New Yorkers, respectively, despite continued evidence of equal usage rates of marijuana across races. Nearly 90% of all New Yorkers arrested for smoking marijuana were black or Hispanic, she reports.
• A Marijuana Law signed on May 29, 2019, in Illinois legalizes recreational marijuana. It permits the state to provide $12 million in assistance to minorities who are interested in the marijuana industry. The available money can be used to help lower marijuana business licensing fees and to provide low-interest minority business loans.
• In my state of Florida, according to the Florida Constitution, non-medical use of marijuana is illegal, and you can be arrested without a medical card. But even with a medical card, the federal government can come after marijuana users. Be aware that you could come in touch with the wrong federal prosecutor at the wrong place and wrong time who could charge you. For me and my medical conditions, the real-world risks are certainly not worth it to be in possession of both marijuana and a gun.

Note: A frequent question, “Does a marijuana card interfere with a Florida Concealed Carry Weapons License?” My non-legal and layman’s opinion is that while federal law technically allows federal agents to force the state of Florida to retract the carry license based on the marijuana card, just having a card is not a violation of federal law. But, realistically seldom would an individual with a marijuana card and a carry weapon license not also own a firearm. So that complicates burden of proof. However, I believe the issue is not with the license itself, but having the license and owning a firearm. So, there is a possibility of losing your license and maybe your gun with fines, jail time, etc., albeit a small one. I do not want to be the test case to dissuade others from having both a medical marijuana card and a gun at the same time.

Existing Federal Marijuana, Controlled Substance, and Firearms Laws

Under the Controlled Substance Act of 1970 marijuana and THC (Tetrahydrocannabinol- the psychoactive component in cannabis) are Schedule 1 controlled substances, which mean that federal law regards them as having “a high potential for abuse.”

Major Point:

Federal law prohibits the cultivation, sale, possession, purchase, and use of marijuana plants and products, REGARDLESS of what the laws of various states say, per this federal law and others.

 The Agriculture Improvement Act was signed into law in December 2018. It made it legal for license holders to grow and sell the cannabis plant hemp, but only when it has a THC content of 0.3 percent or less. And only for use as food or in the making of textiles, clothing, etc.

United States Code Title 18, Section 922(g) makes it unlawful for certain individuals to ship, transport, possess or receive any firearm or ammunition with the required interstate commerce nexus. Prohibited classes include convicted felons, fugitives from justice, unlawful users or addicts of controlled substances (paragraph 922(g)(3)), mental defectives, illegal aliens, dishonorably discharged servicemen, and persons who have renounced their U.S. citizenship. The penalty provides that a person who “knowingly” violates this law “shall be fined as provided in this title, imprisoned not more than ten years, or both.”

Major Point:

Federal law, supported by administrative orders and court rulings, prohibits marijuana users from owning, possessing, or buying firearms. It also prohibits anyone from selling or giving firearms to a person they know or suspect to be a drug user or even the owner of a medical marijuana card.

Under the Gun Control Act of 1968, any “unlawful” user of a controlled substance is prohibited from purchasing or owning a gun. Because marijuana is a Schedule 1 controlled substance under federal law, the U.S. government maintains that there is no way to use cannabis lawfully. Some say the law needs to change, while others strongly disagree and say it should be enforced.

Major Point:

Marijuana users are using a controlled substance, so they are prohibited from owning a gun, per the federal Gun Control Act at this time. The federal law is currently clear.

Federal ATF Form 4473

The U.S. Department of Justice, Bureau of Alcohol, Tobacco, Firearms, and Explosives uses a Firearms Transaction Record, ATF Form 4473, to collect data from licensed gun shop transactions and transfers. It determines if you are prohibited from receiving a firearm, based on your responses to several questions.

QUESTION 11e of the ATF Form 4473 asks:

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

A “WARNING” is given after the question, and the individual must sign and certify his answers.

Any false or misleading answers or statements is a crime punishable as a Felony under Federal law.

The ATF Form 4473 Warning Statement:

“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 this layman’s perspective, the real danger for medical marijuana users who buy and own firearms comes from fraud in completing, signing, and certifying the ATF Form 4473. When buying a firearm, you must complete the 4473, which includes the statements about marijuana use. You could lie and face several years in prison for something that is easily verifiable or tell the truth and be rejected. I do NOT recommend doing anything that is technically or clearly illegal. If you decide to theoretically purchase from a private individual and not use a Form 4473, to me, it would still be illegal and inadvisable. DANGER!

Conclusions

There is an issue about using marijuana and owning and using a gun. The issue is in flux and is affected by many, complex variables and values, state and federal laws, and emotional opinions. State laws vary considerably, and marijuana is legal for recreational use in 11 U.S. states now. A growing number of states have and are authorizing legal marijuana for medical use. About 16 U.S. states currently do not have any broad laws legalizing marijuana. In those medical-use-only states, like my state of Florida, qualifying medical conditions vary. Marijuana and related products are a growing business in some states, and both positive and negative results have been realized.

Currently, federal law and court rulings state that marijuana is a controlled substance, and its possession and use are prohibited. Federal laws, Bureau of Alcohol, Tobacco, and Firearms’ 2011 guidance, court orders, and rulings, and ATF forms emphasize and support that users of a controlled substance are prohibited from purchasing, possessing, and owning any firearm or ammunition… no matter what your state law and regulations permit or specify. If you do not agree, then work to change existing laws. In the meantime, I believe that we should follow the law’s intent as written now. This is the way the regulations are at this time, but they could change. The necessity for medical use and the varying qualifying medical conditions make this a very personal matter. So consult your physician for your medical condition, possible alternative treatments, or pain relief options.

If you violate existing federal law now, you could subject yourself to a Felony, imprisonment up to 10 years, and a monetary fine. Civil penalties could be additional, and you might even lose any federal benefits, including (perhaps depending on vesting and exceptions) military or civilian retirement benefits, health insurance, and age eligibility for retiring. Who knows? Changes, interpretations, and decisions come quickly and vary. Why take the chance of using a controlled substance and losing gun ownership and use? A solid cost-benefit analysis would help you make a clear and logical personal decision to possibly avoid jeopardizing your gun ownership and use and incurring penalties.

I do not want to do anything that is clearly or borderline illegal. This has worked for me, but this is a very personal decision which is partly based on your medical condition. If you want, you can work to change existing marijuana and controlled substance laws relating to gun ownership. So, make a logical and legal call for yourself and your values and other complex factors about this issue. Decide at your own risk. What are your thoughts about marijuana use, your state laws, and the related federal regulations?

Be Safe!

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* This personal opinion article is meant for general information & educational purposes only and the author strongly recommends that you seek counsel from an attorney for legal advice and your own personal certified weapons trainer for proper guidance about shooting & using YOUR firearms, self-defense and concealed carry. It should not be relied upon as accurate for all shooters & the author assumes no responsibility for anyone’s use of the information and shall not be liable for any improper or incorrect use of the information or any damages or injuries incurred whatsoever.

© 2019 Col Benjamin Findley. All Rights Reserved. This article may not be reprinted or reproduced in whole or in part by mechanical means, photocopying, electronic reproduction, scanning, or any other means without prior written permission. For copyright information, contact Col Ben Findley at [email protected].