Legal Marijuana vs. 2nd Amendment – Gun Buyers Face Legal Conflict

While a number of new states recently voted to expand marijuana rights, many did not realize that this could directly conflict with their Second Amendment right to purchase a firearm. 

That’s because federal law – specifically 18 U.S.C. § 922(g)(3), which is part of the Gun Control Act – criminalizes the possession or receipt of a firearm by an unlawful drug user or person addicted to a controlled substance. Of course, many states have now legalized the drug, but it still remains outlawed by federal statute. Those purchasing a new firearm are asked to fill out federal background check forms that specifically ask whether the purchaser uses marijuana for recreational or medicinal purposes. If they do, they are not allowed to purchase the gun.

This conflict was recently questioned by Alaska Sen. Lisa Murkowski, a Republican who says she didn’t vote in favor of marijuana, but now she is worried about its impact on the Second Amendment rights of citizens. Recently, the U.S. Court of Appeals for the Ninth Circuit ruled in Wilson v. Lynch that the Second Amendment rights of a Nevada woman were not infringed by the federal government’s ban on sales of guns to medical marijuana card holders. The ruling is applicable to nine other states, including California. 

Plaintiff in that case sought to purchase a firearm for self protection after obtaining a medical marijuana card. However, the gun dealer declined, citing U.S. law prohibiting sales of firearms to drug users. The U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives has instructed gun stores and sellers that they can safely assume a person who has a medical marijuana card uses the drug.

The appellate panel ruled that Congress made a reasonable conclusion in finding that use of marijuana and other drugs increases the risk of behavior that is both unpredictable and irrational, with which guns should not be associated. The courts also held that it was reasonable for the ATF to instruct sellers that medical marijuana cardholders use the drug.

Plaintiff’s attorney in that case said he plans to appeal.

Although both marijuana consumers and gun owners don’t always find themselves on the same side of the cultural divide, they can be one-in-the-same and many are troubled.

As noted by the founder of NORML, a marijuana advocacy group, the fact that users of marijuana are essentially being forced to forfeit their Second Amendment rights is unfair. Further, those who use the drug as medicine are being asked to decide between their health and their Second Amendment rights, which is nothing short of offensive.

The form gun buyers fill out when they visit a licensed firearm dealer is called an ATF Form 4473. In that form, Question 11(e) asks whether the person purchasing the weapon is an unlawful user or addict of marijuana. Anyone who answers “yes” cannot buy the gun. There aren’t exceptions for those who lawfully use the drug under state law.

The issue can be a tricky one. For example, even the National Rifle Association didn’t respond to requests for comment by the Wall Street Journal.

Murkowski sent a letter several months ago to the Attorney General, asking for a reconsideration of this policy. Murkowski said she does understand the concerns about marijuana and firearms, but said the same could be argued with regard to alcohol.

The Los Angeles CANNABIS LAW Group represents growers, dispensaries, collectives, patients and those facing marijuana charges. Call us at 949-375-4734.

Additional Resources:

Legal Marijuana Poses a Problem for Gun Buyers, Nov. 14, 2016, By Gary Fields and Kristina Peterson, The Wall Street Journal

More Blog Entries:

San Jose, Other Communities, Ban Marijuana Before Vote, Nov. 12, 2016, Orange County Cannabis Lawyer Blog