Marijuana and the Right to Bear Arms: Is It Time for a Change?

Photo Credit: Liberty Viral

This November, nine states will have marijuana initiatives on their ballots. Five of these states—Arizona, California, Maine, Massachusetts, and Nevada—will be voting on marijuana legalization for recreational use. If these initiatives pass, that will make a total of nine states that allow recreational marijuana use. The remaining initiatives deal with medical marijuana—which is already legal in nearly half of the country.

At the same time, in Wilson v. Lynch, the Ninth Circuit recently ruled that medical marijuana cardholders who are following state law are prohibited from purchasing firearms. Although prominent civil liberties groups like the American Civil Liberties Union are hesitant to recognize the Second Amendment as an individual civil liberty, the current Supreme Court-position is that the Second Amendment is, in fact, an individual civil liberty protected by the Constitution. While one can disagree with the Court’s interpretation, it is the current law of the land.

The court noted that federal law, 18 U.S.C. § 922(d)(3) and (g)(3), prohibits selling firearms to, and the possession of firearms by, anyone who is “an unlawful user of or addicted to [marijuana].” Even though medical marijuana patients and recreational marijuana users are lawfully using marijuana in their state, it is still illegal under federal law. The court also pointed to a September 2011 guidance letter from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to all Federal Firearms Licensees (FFLs) (those who are licensed to sell firearms retail) stating that there are no exceptions for those individuals in states that authorized marijuana use. Thus, FFLs are prohibited from selling firearms to someone reasonably believed to be a user of marijuana—even if that person is legally allowed to use it under state law.

The consequence are that patients who require medical marijuana to treat their conditions, or recreational users who are following state law, must make a choice: give up their right to purchase a firearm, not use a legal and ostensibly medically-beneficial substance, or lie on their background check forms under the penalties of perjury.

Given the upward trends and growing popular support of legalization, the recognition of medicinal uses of marijuana, and the data on marijuana compared to other legal substances, the law should be changed to prevent forcing people to make these choices. At the very least, the recent guidance by the ATF should be rescinded and replaced making accommodations for those following state law until a more permanent resolution can be made.

Alcohol v. Marijuana and the Prevention of Gun Violence:

In Wilson v. Lynch, the court stated that the purpose of § 922 is to prevent gun violence. “[I]t is beyond dispute,” the court opined, that marijuana use could lead to “irrational or unpredictable behavior.” Notably absent from § 922, however, is a prohibition on people who use, or are addicted to, alcohol. According to a 2003 study, “alcohol use has the most direct evidence of an intoxication-violence relationship,” but “[c]annabis reduces [the] likelihood of violence during intoxication.” The U.S. Department of Health and Human Services found: “[A]lcohol is more likely than other drugs to be involved in substance-related violence . . . Thus, despite the popular conception that violent crime is strongly linked to drug use by offenders . . . there is actually a much greater probability that any given violent incident will be related to alcohol use than to use of other drugs by the offender.” Moreover, the British Advisory Council on the Misuse of Drugs concluded, “Cannabis differs from alcohol, however, in one major respect: it seems not to increase risk-taking behaviour.” They went on to state:

Cannabis intoxication tends to produce relaxation and social withdrawal rather than the aggressive and disinhibited behaviour commonly found under the influence of alcohol. This means that cannabis rarely contributes to violence either to others or to oneself, whereas alcohol use is a major factor in deliberate self-harm, domestic accidents and violence.

Notwithstanding this research, federal law prohibits marijuana users from possessing or purchasing firearms, yet there is no such prohibition for alcohol users. Admittedly, some states prohibit alcohol abusers, misdemeanants, or persons under the influence of alcohol form purchasing a firearm. But that emphasis—on abusers—is far from the full-stop ban on law-abiding, responsible recreational users that occurs with marijuana users. If the Department of Justice is okay with allowing people who drink alcohol to purchase and possess firearms, it seems irrational to prohibit marijuana users in states where marijuana is legal.

“Unlawful” Users?

The Department of Justice has stated that individuals who comply with state laws are “less likely” to threaten the federal enforcement priorities. While marijuana users are, technically speaking, unlawful under federal law, if they are in a state that permits marijuana use, they are complying with the state’s law and regulatory regime. Medical marijuana users, by definition, need to satisfy the requirements for a state license to obtain medical marijuana.

To be sure, one of those priorities is the prevention of violence and the “use of firearms in the cultivation and distribution of marijuana” (emphasis added). But, as noted before, the data suggests that marijuana use is hardly a gateway to violence. Furthermore, owning a firearm for self-defense in the home, shooting sports, or hunting is not the same as using a firearm in the cultivation and distribution of marijuana. It would seem that the federal priorities are aimed at deterring violence among gangs and cartels rather than your average recreational or medicinal marijuana user. Thus, individuals who are legally permitted to use marijuana and complying with the state’s law should not be per se prohibited from purchasing or possessing a firearm.

The previously mentioned federal priority also puts legal marijuana retail businesses at a disadvantage. Since it is hard to find banks willing to work with them, due to federal regulations, these businesses deal primarily in cash. Thus, marijuana businesses are a prime target for thieves. Under the DOJ’s guidance, it is questionable whether these businesses can hire armed security guards to protect themselves from armed robbers. While it is legally questionable, professional, armed marijuana security companies have developed to fill this need. If a state has imposed a regulatory regime that allows armed security guards (who often have to undergo licensing and background checks) to protect marijuana businesses, it seems like compliance with this regime should help prevent violence and presumably the real concern of the federal priorities—street-gang and cartel violence.

Finally, the court in Wilson also asserted that marijuana leads to “negative interactions with law enforcement” because it involves “criminal activity,” and that marijuana users “frequently make their purchases through black market sources who themselves frequently resort to violence.” However, in a state where marijuana use is legal, users are, by definition, not engaged in criminal activity as far as their local law enforcement is concerned. And it is local law enforcement that these users interact with regularly. Moreover, if medicinal or retail marijuana sales are permissible, users need not resort to the black market sources that “frequently resort to violence” because they have legitimate and regulated sources to purchase from. Thus, these particular concerns about marijuana use—especially in states where it is permitted—make no sense.

Policy Recommendations

As a supporter of both legal marijuana use and firearm ownership, and in light of the information discussed above, I have a few recommendations for resolving these issues. In order of helpfulness, they are:

1. Remove marijuana from the Controlled Substance Act altogether and tax and regulate it like other legally regulated products (e.g., tobacco and alcohol), reschedule marijuana to recognize medicinal uses for marijuana, or amend § 922 to exclude marijuana users who are in compliance with state law requirements; or
2. The current ATF and DOJ guidance should be amended to make exceptions for individuals living in states where marijuana use has been permitted (for example, by interpreting “unlawful users” to exclude users who are NOT unlawful under state law). Patients who are prescribed Xanax, a controlled substance, are not deemed unlawful—patients who are prescribed marijuana, a controlled substance, should not be deemed unlawful either. Exceptions should also be made for permitting legal retail businesses to hire armed security guards in order to “prevent violence” like the federal priorities suggest; or
3. Restrict appropriations for enforcement of the relevant portions of § 922 in states where marijuana use is legal. See, e.g., United States v. McIntosh, Nos. 15-10117, 15-10122, 15-10127, 15-10132, 15-10137, 15-30098, 15-71158, 15-71174, 15-71179, 15-71225, 2016 U.S. App. LEXIS 15029, *9 – 10 (9th Cir. Aug. 16, 2016) (holding that the Department of Justice is prohibited under a congressional appropriations rider from prosecuting individuals who are engaged in conduct permitted by state medical marijuana laws and who fully comply with such laws).

These changes would make it possible for people to comply with their state’s law and exercise rights granted to them by the state, while also being able to exercise their constitutional civil liberty to purchase and possess a firearm. If we are willing to allow recreational users of alcohol, and prescribed users of various controlled substances, to purchase and possess firearms, then it is irrational to prevent marijuana users from doing the same—especially in states that have permitted and regulated the use of marijuana.

(Background photo credit: Mary Millus/Green Rush Daily)

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