Gun Licenses and Medical Marijuana
Excerpted from the Cotney Construction Law Update Newsletter – August 2018
With a growing number of states passing laws legalizing marijuana, much of the marijuana debate has focused on the public health and economic effects of passing such a law. What is often overlooked in these discussions is how legalizing marijuana, whether recreationally or for medical purposes, affects our other rights – namely, the right to own a gun.
In a recent case, the Ninth Circuit Court of Appeals grappled with this exact issue. The court sided with the federal government in a case where a woman purchasing a gun was denied due to her status as a medical marijuana cardholder. The feds cited 18 USC §922(g)(3), which prohibits unlawful users of controlled substances from obtaining and using firearms. This may sound surprising, being that 29 states including Florida have legalized some form of marijuana. However, since marijuana is still considered a “controlled substance” under federal law, the Bureau of Alcohol, Tobacco and Firearms (ATF) still controls this complex conflict of laws.
So, what does this mean for the more than 50,000 Floridians who have already registered to take advantage of the recent change in state marijuana law? The answer is complicated. Because there is no federal gun registry, it is currently impossible for the feds to track down gun owners who also have medical marijuana cards. That being said, being caught with medical marijuana and a gun on your person may be a very different story. One of the more pressing issues that the legal community is currently facing deals with people committing fraud on their 4473 forms, an ATF issued form that all new firearm purchasers must fill out. Every 4473 asks whether you use a controlled substance. Answer no and you run the risk of committing fraud – a federal offense that calls for significant jail time. Answer yes and you run the risk of getting your application denied – just as the woman in the Ninth Circuit decision did.
There are many challenges on the horizon for marijuana legislation, most of which have very few definite answers. It will be important to monitor the progress of federal legislation and enforcement guidelines, as well as new caselaw that emerges on these issues.
Author’s note: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.
Trent Cotney of Cotney Construction Law is Florida Bar Certified in Construction Law, General Counsel and a member of the Florida Refrigeration & Air Conditioning Contractors Association (FRACCA) and a member of RACCA. For more information, call 813-579-3278 or go to www.hvaclawyer.com.