By Gaurav Dubey (M.S. Biotechnology) STAFF
The issue of gun rights has become an incredibly contentious topic of debate in recent years. While the push for national gun reform continues, there remains much confusion on how the current gun laws affect the growing medical cannabis population.
To make matters simple on the question of Will I lose my gun rights as a legally registered medical marijuana patient? – the answer is pretty much No. You will not have your gun licenses revoked or firearms confiscated simply for having a medical cannabis card. Also, if you are purchasing as an adult-use consumer, while you do have to show ID to purchase, this information is not tracked or shared with any government database.
However, federal law prohibits any “unlawful user” from purchasing guns, even if that person lives in a state with legal medical cannabis laws. The question is, how strongly are these laws enforced?
We did the research to uncover what all this legislation means and what medical marijuana patients need to know in order to protect their rights and avoid unnecessary legal issues.
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Massive Confusion Around Medical Marijuana and Gun Laws
Questions and confusion regarding whether or not medical cannabis patients must relinquish their arms and/or forfeit their right to future arms purchases when obtaining a medical cannabis card are all too common, whereas answers to these questions are ambiguous and hard to find.
Medical marijuana patients, gun owners, and people who fall into both categories want the facts in order to avoid any legal issues.
As with much of the legislation concerning cannabis, there is significant friction between state and federal laws. Consequently, enforcement of said laws varies widely across different states as well.
Attorney General Jeff Sessions, under the Trump administration, rescinded the “Cole Memo” as of January 2018 (www.justice.gov, 2018). The Cole Memo deferred the prosecution of petty cannabis-related offenses to the states instead of allocating federal funds and resources to enforce such laws (www.justice.gov, 2013). With over half the country adopting medical cannabis programs however, there is clearly discord between federal and state governments.
What does this mean for currently licensed gun owners seeking to get a medical cannabis card for a debilitating illness?
On the flip side, what does it mean for medical cannabis patients legally recognized by their state who wish to exercise their second amendment rights?
That’s what we aimed to find out while conducting our research about the latest federal and state laws. This article aims to clear the air surrounding the hazy issues of cannabis and gun laws, hopefully providing the medical cannabis community and society as a whole with a clearer picture of how to reconcile the controversy about cannabis and guns.
Navigating the Complexities of State and Federal Laws
The reality is that this issue is anything but straightforward. There are many factors to consider when it comes to state and federal gun and medical marijuana laws.
First, let’s partake in a quick history lesson regarding the Gun Control Act of 1968 (also known as Public Law 90-618), which defined “at-risk” individuals who shall be denied their second amendment rights to own/purchase firearms.
Within this group, falls an individual who uses or is addicted to controlled substances (Public Law 90-618). As far as the federal government is concerned, there is no such thing as a “legal” cannabis patient or user in the United States, since cannabis is still a Schedule I Substance, as per federal law.
However, laws and regulations surrounding Firearm Owners Identification (FOID) cards, as well as Concealed Carry Licenses (CCL), are regulated by the state. As such, “State law requires that a person’s status as a medical marijuana cardholder not result in the denial of any right or privilege” (Illinois State Police).
Therefore, at least in Illinois, you will not be denied a FOID card or CCL card due to your status as a medical cannabis patient or caregiver pursuant to the Compassionate Care Act. However, are you able to use this card to actually purchase firearms if you’re a medical cannabis patient?
Turns out the answer to this too, as we will discuss next, is both Yes and No.
How the 2nd Amendment Applies to Medical Marijuana Patients
The second amendment of the United States Constitution “protects an individual right to possess a firearm” (“The Constitution of the United States”, Amendment 2). However, such laws are not set in stone and universally applicable to all citizens of the U.S.
Regulations in place prohibit certain populations and demographics (such as convicted felons) from owning a firearm. Furthermore, as discussed earlier, the enforcement of such laws tend to vary state by state, especially when you throw cannabis legislation and medical marijuana patients into the mix.
Since cannabis is still a federally illegal, Schedule I drug, federal firearm licensees (FFL’s) are prohibited from selling firearms to card-holding cannabis patients, as per a 2011 open letter from the DOJ to all FFL’s (Herbert, 2011). However, this does not mean a medical cannabis patient cannot purchase firearms at all; it simply means they are unable to do so from federally licensed arms dealers.
The specific wording in the letter states:
“Medical Cannabis (with a valid FOID/CCL) cardholders may purchase through person-to-person transactions (non-FFL); however, they cannot purchase from an FFL.”
Furthermore, as per the Illinois State Police, “Medical marijuana cardholders will not have their FOID or CCL cards revoked, or be denied issuance of a FOID or CCL card, due to their status as a medical marijuana cardholder” (IL State Police).
The “Background Check Loophole”
Thus, there is a way to have your cake and eat it too, in that, you may not be denied a FOID/CCL card if you’re a medical cannabis patient or caregiver in IL and purchase guns from PRIVATE, (not federal) dealers.
This is often referred to as the “background check loophole” or “gun show loophole”, as private, unlicensed firearms dealers (such as those at gun shows) are not required to perform background checks.
Medical marijuana patients who are looking to purchase firearms through private dealers should note that many states have closed this loophole by requiring background checks. These states include:
- District of Columbia
- Hawaii (includes permit)
- Illinois (includes permit)
- Iowa (includes permit)
- Massachusetts (includes permit)
- Michigan (includes permit)
- Nebraska (includes permit)
- New Jersey (includes permit)
- New York
- North Carolina (includes permit)
- Rhode Island
It is also important to note that in Illinois, you do not need to fill out a 4473 form for ammunition purchases.
How the 2nd Amendment Applies to Adult-Use Consumers
Pulling from PA 101-0027, the Illinois Cannabis Regulation and Tax Act:
- “Section 10-20. Identification; false identification; penalty. (a) To protect personal privacy, the Department of Financial and Professional Regulation shall not require a purchaser to provide a dispensing organization with personal information other than government-issued identification to determine the purchaser’s age, and a dispensing organization shall not obtain and record personal information about a purchaser without the purchaser’s consent.
- A dispensing organization shall use an electronic reader or electronic scanning device to scan a purchaser’s government-issued identification, if applicable, to determine the purchaser’s age and the validity of the identification. Any identifying or personal information of a purchaser obtained or received in accordance with this Section shall not be retained, used, shared or disclosed for any purpose except as authorized by this Act.”
Here is an additional and recent update as of 2020 from Capitol Fax
Evidently, this prevents dispensaries from sharing your personal information without your authorization under state law, including agencies such as Illinois State Police (ISP), Alcohol, Tobacco & Firearms (ATF), etc.
Police Encounters Regarding Guns and Marijuana
It is also important to advise the public that due to Sessions’ and the DOJ’s rescinding of the Cole Memo, there now exists a higher likelihood of police and prosecutors following federal law instead of state law, and punishing gun owners or revoking the rights of gun owners who use cannabis.
Note that you are under no obligation to disclose whether you have drugs or guns in your vehicle if you are confronted by the police.
If you obtained your medical card, but now regret it and would rather be able to purchase guns at FFL dealers, you can relinquish your medical card status and from there once again be able to purchase if you are concerned about any potential detriment to your 2nd amendment rights.
Continuing the Fight for Fair and Equal Rights to Access
In the end, we as a society cannot hope to adequately integrate cannabis use into our laws, customs, and policies until legislators de-schedule (or at the very least, re-schedule) cannabis as a Schedule I compound/substance.
Thus, the fight must go on for the constitutional rights of medical cannabis patients. Needless to say, when comparing different legally available substances (such as alcohol and Rx stimulants/opioids/narcotics) to cannabis, there is a clear double standard.
Is it reasonable to deny medical cannabis patients their second amendment right but not apply this standard to those who consume alcohol or prescription drugs such as Oxycontin (commonly abused and addicting painkilling narcotic medication)?
Surely someone’s judgment can become equally impaired on any number of substances outside of just cannabis. Until this double standard is put to rest, we will continue to fight for fair and equal access.
Stay Tuned for More Updates Regarding Medical Marijuana and Gun Rights
Our hope is that in future articles we will be able to analyze statistics regarding the relationship between different drugs (including alcohol) and how their use correlates with acts of violence. Then, perhaps, people will uncover that medical marijuana users can be (and typically are) responsible gun owners. For now, all we can do is stay informed and spread accurate, resourceful information for the community at large.
We may not be armed with guns, but we can always be armed with facts!
Special thanks to the Chief Public Information Officer at the Illinois State Police for answering some of our questions.
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MEMORANDUM FOR ALL UNITED STATES ATTORNEYS: Guidance regarding marijuana enforcement, (2013). Retrieved from https://www.justice.gov/iso/opa/resources/3052013829132756857467.pdf
SB2529 99th general assembly: FOID-MEDICAL CANNABIS, Senate BillU.S.C. (2017). Retrieved from https://www.ilga.gov/legislation/BillStatus.asp?DocNum=2529&GAID=13&DocTypeID=SB&LegId=95205&SessionID=88&GA=99
Herbert, A. (2011). In Federal Firearm Licensee’s (FFL) (Ed.), Open letter to all federal firearms licensees U.S. Department of Justice.
IL State Police: Firearms Service Bureau. (2018). Frequently asked questions. Retrieved from https://www.ispfsb.com/Public/Faq.aspx
Public act 099-0519, (2018). Retrieved from https://www.ilga.gov/legislation/publicacts/99/PDF/099-0519.pdf
The United States Department of Justice. (2018). Justice department issues memo on marijuana enforcement. Retrieved from https://www.justice.gov/opa/pr/justice-department-issues-memo-marijuana-enforcement
Gun control act of 1968, Public LawU.S.C. (1968). Retrieved from https://archive.org/stream/GunControlActOf1968PubLaw9061882StatPg1213/Gun_Control_Act_of_1968_Pub_Law_90-618_82_Stat_Pg_1213_djvu.txt