Lee’s Note: Here’s an incredibly well-researched guest column from our friend Cindy Clark, a gun savvy lawyer known for her thorough gun and family trusts.
One Toke Over the Line: Medical Marijuana Snuffs Out Gun Rights
By Cynthia Clark, Tannenbaum Scro, P.L
November 15, 2016
Medical marijuana is now legal in Florida. Well, actually, it’s been legal for some time. We already have a statute that allows terminally ill people to use a non-smoked, low-THC form of Mary Jane.
But on November 8, 2016, Florida voters approved a constitutional amendment that will extend the use of medical marijuana to people with “debilitating illnesses,” such as glaucoma, HIV, AIDS, PTSD, ALS, Crohn’s disease, Parkinson’s disease, multiple sclerosis, and other illnesses and conditions. That’s a lot of people who will be able to use medical marijuana to ease their symptoms after July 1, 2017.
In addition, some Florida cities such as Miami Beach and Tampa, have decriminalized the possession of a small amount of illegal weed, making it a civil offense rather than a criminal offense.
But what few people are talking about is how using marijuana – medical or not – strips you of your gun rights.
Florida can pass all the pro-marijuana laws it wants, but pot’s still a Schedule I controlled substance under Federal law – and Federal law trumps state law when it comes to drugs. And guns.
So, I’ll make this easy for you. Marijuana use = no Second Amendment right. Period. End of discussion. It doesn’t matter what the state says. And here’s why…
The federal law governing who can and cannot possess and own firearms (18 U.S.C. § 922(g)(3)) prohibits possession or ownership by a person who is “… an unlawful user of or addicted to any controlled substance (as defined in section 802 of the Controlled Substances Act (21 U.S.C. 802)).” We’re talking about the unlawful user here – which means either 1) the user of an illegal controlled drug, or 2) the wrongful user of a legal controlled drug (i.e. taking legal drugs prescribed for someone else).
The Controlled Substances Act (1970) divides drugs into five Schedules depending on the drug’s perceived usefulness for medical reasons and its addictiveness. Marijuana is a Schedule I controlled substance – along with heroin, LSD, peyote, mescaline, etc. All Schedule I drugs are illegal to prescribe and use under federal law. (Doctors who write prescriptions for these drugs can lose their DEA license; so, in states where medical marijuana is allowed, they generally merely “recommend” it instead).
So, if you use medical marijuana, you are automatically an unlawful user of a controlled substance and cannot possess, use, buy, sell, gift, or otherwise transfer firearms. You are now a prohibited person under federal law (18 U.S.C. § 922(g)(3). The mere possession of a firearm by a prohibited person is a crime, and you MUST disclose your illegal drug use on ATF Form 4473 when you buy, sell, or otherwise transfer a gun through a FFL. Failure to disclose your use of marijuana (medical or otherwise) is a federal felony. In a private transaction, if the seller knows or has reasonable cause to believe the buyer uses marijuana (medical or otherwise) the transaction cannot be completed without both parties committing a felony (18 U.S.C 922(d)).
- Your Florida concealed carry license will be suspended or revoked (Fla. Stat. 790.06(10)(a)).
- If you own an NFA weapon in your individual name, such as a silencer or SBR, it becomes contraband as soon as that recommendation letter, medical marijuana card, or ticket for illegal pot possession is issued.
- If you own an NFA weapon in a gun trust, you can no longer be a trustee or lifetime beneficiary of that trust (you might be able to be a death beneficiary of someone else’s gun trust if appropriate language is added to the trust to prevent possession by a prohibited person).
- As a prohibited person, you cannot have control of any firearms if you’re the personal representative (executor) or trustee of someone else estate or trust – which means you can’t legally sell the guns.
- If your spouse or child is taking medical marijuana, he or she cannot have access to any of your weapons or know your safe combination. All your estate planning documents should be reviewed to ensure that any such prohibited persons are removed from certain roles or additional language is added to prevent an accidental felonies.
I know some of you are reading this and thinking, “This is just stupid. People who need medical marijuana won’t care about their gun rights.” Some may not, but some may. This won’t affect just terminally ill people any more.
Or you might be thinking, “I’ve smoked/I know people who have smoked pot for years and I/they still own guns. No one’s going to catch me.” Maybe, maybe not. I’m just educating you on the law – following it or breaking it is always your choice. Do you know for sure that state-issued medical marijuana cards or tickets for pot possession won’t ever be submitted to the NICS background check system? Do you trust your government to protect your individual Second Amendment rights? Are you aware of what’s been happening to the right to self-defense for certain veterans and the disabled?
Here’s the letter the ATF sent to all FFLs back in 2011 when states first started legalizing medical marijuana. Pretty cut and dried, and no newer guidance has been issued. The fact is that until ganja is removed from Schedule I, it’s an illegal drug under federal law.
If you’re a Florida gun owner and anyone in your immediate family is unfortunate enough to need medical marijuana, please be sure to plan ahead before obtaining that card.