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Abstract
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The decriminalization of an action is never as simple as a single piece of legislation. It is a long, slow evolving process, with each step revealing a new problem which must be solved. The legalization of medical marijuana on the state level has created a number of complex legal issues relating to the conflicts between state decriminalization and existing federal law. Addressed here is the impact of medical marijuana on gun ownership. Specifically, does getting a medical marijuana card (MMJ) mean you lose your right to have a concealed weapons permit (CWP)? 2
The question of possessing both medical marijuana and a firearm is settled. 3 Until the federal government removes marijuana from Schedule I classification under the Controlled Substances Act, possession of both is a violation of 18 U.S.C. § 922(d), also known as The Gun Control Act. 4 The issue of MMJ possession's impact on CWP is a mixture of federal law, individual state statutes, and agency opinions, beginning with an open letter issued by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (BATFE). The 2011 BATFE Open Letter
In 2011, the BATFE issued an Open Letter to All Federal Firearms Licensees (FFL) which offered guidance to firearms dealers on firearms purchases and possession in regard to medical marijuana.5 In the letter, the BATFE references two relevant statutes, 18 U.S.C. § 922(d)(3), regulating the actions of the seller, and 18 U.S.C. § 922(g)(3), regulating the actions of the buyer and possessor of a firearm.6
When purchasing a firearm from a dealer, a buyer must fill out Form 4473, answering questions relating to the buyer's background.7 Question 21(e) asks the buyer if they are "an unlawful user of or addicted to any controlled substance."8 Under the BATFE interpretation of § 922(g)(3), the buyer is considered an unlawful user of a controlled substance if they use medical marijuana, even with an MMJ.9 When a buyer who uses medical marijuana reaches the relevant question, they must answer that they are an unlawful user, therefore, disqualifying them from purchase....
2 The terminology and abbreviation for a permit to carry a concealed firearm varies by state. For the purposes of this article, the abbreviation CWP will be used unless citing specific state or court language.
3 See U.S Dep't. of Just., Memorandum to all United States Attorneys - Marijuana Enforcement (2018).
5 Bureau of Alcohol, Tobacco, Firearms, and Explosive, Open Letter - Marijuana for Medicinal Purposes (2011).
6 Id.
7 Id.; Form 4473 (revised May 2020) is issued by the BATFE for all firearms sales conducted by an FFL. Section A, filled out by the FFL, includes information on the firearms being purchased. Section B, questions 9-23, contains the buyer's personal and background information to be filled out by the buyer. Section C, completed by the FFL, includes the buyer's identification, results of a background check, and certification that the FFL believes they can legally sell the firearm to the buyer. The FFL then uses this form to conduct a background check, if required under state and federal law. The FFL is required to keep the 4473 on file indefinitely; however, the FFL maintains control of the 4473 until they relinquish their FFL license, at which time the 4473 is sent to the BATFE records department.
8 Id.
9 Id.
10 Id.
4 Id.; See also 21 USC 13 §811.
https://journals.law.harvard.edu/jlpp/wp-content/uploads/sites/90/2022/02/MEDICAL-MARIJUANA-PERMITS-AND-CONCEALED-WEAPONS-PERMITS-WHEN-ONE-RIGHT-IMPACTS-ANOTHER.pdf
Language: en |