Clark Hill: The Intersection Between Marijuana and the 2nd Amendment: What Gun Owners Need to Know

Marijuana use has become increasingly common in the United States, with many states legalizing its use for medical or recreational purposes. However, U.S. federal law still classifies marijuana as a Schedule I drug, which means it is illegal under federal law. This creates a confusing legal landscape that can impact the rights of citizens, particularly when it comes to the US Constitutional Second Amendment right to bear arms. In this article, we will explore how U.S. marijuana laws affect citizens’ rights to bear arms and what this means for those who use marijuana.  This article does not opine on expanding or restricting gun rights in the U.S. in general.  Background on US Marijuana Laws in Connection with the Second Amendment  Marijuana has been a controversial topic in the United States for many years. The federal government has classified marijuana as a Schedule I drug, which means it is considered to have no medical value and a high potential for abuse. However, in recent years, many states have taken steps to legalize marijuana for medical or recreational use. As of 2021, 36 states have legalized medical marijuana, and 15 states have legalized recreational marijuana. However, even in states where marijuana is legal, federal law still classifies it as illegal.  The Second Amendment to the U.S. Constitution guarantees the right of citizens to bear arms. The text of the amendment reads: “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” The Supreme Court has interpreted this amendment to mean that citizens have a right to possess firearms for self-defense in the home.  Under federal law, it is illegal for anyone who uses marijuana to possess a firearm. This is because marijuana is classified as a Schedule I drug under the federal Controlled Substances Act, which prohibits anyone who uses illegal drugs from possessing firearms. The Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) has issued guidance stating that anyone who uses marijuana, even if it is legal under state law, is considered an “unlawful user” of a controlled substance and is prohibited from possessing firearms.  This means that anyone who uses marijuana, even if they are using it legally under state law, is prohibited from possessing firearms under federal law. This includes medical marijuana users who have a state law valid recommendation from a doctor. In fact, the ATF has specifically stated that “any person who uses or is addicted to marijuana, regardless of whether his or her state has passed legislation authorizing marijuana use for medicinal purposes, is an unlawful user of or addicted to a controlled substance and is prohibited by federal law from possessing firearms or ammunition.”  The Impact on Gun Owners  This creates a challenging situation for gun owners who use marijuana. If a gun owner admits to using marijuana, they could face serious legal consequences, including losing their right to possess firearms. This can be a difficult choice for those who rely on marijuana for medical reasons or who use it recreationally in states where it is legal. If the gun owners denies using marijuana then they face the risk of committing felony perjury. Although committing perjury on a gun background check is a crime that is rarely prosecuted, gun owners should not be faced with this choice.  The penalties for violating federal law by possessing firearms while using marijuana can be severe. Anyone who is found to be in possession of a firearm while using marijuana can be charged with a federal crime, which carries a penalty of up to ten years in prison. In addition, anyone who knowingly sells a firearm to someone who uses marijuana is also breaking the law and could face a prison sentence of up to ten years.  In some cases, gun owners who use marijuana may not even realize that they are breaking the law. For example, someone who uses marijuana legally under state law may not be aware that they are prohibited from possessing firearms under federal law. This can lead to unintentional violations of federal law and serious legal consequences.  The confusion surrounding marijuana laws can also impact gun dealers. The ATF has issued guidance stating that gun dealers should not sell firearms to anyone who they have reason to believe is a marijuana user, even if the individual has a valid state-issued medical marijuana card. This means that gun dealers could be held liable if they sell a firearm to someone who is a known marijuana user.  Gun dealers are required to perform background checks on potential buyers before selling firearms. As part of this process, they must ask the buyer if they use illegal drugs, including marijuana. If the buyer admits to using marijuana, the gun dealer is prohibited from selling them a firearm. If the buyer lies about their drug use and is later found to be a marijuana user, the gun dealer could be held liable.  This can create a challenging situation for gun dealers, who may not be aware of the intricacies of state and federal marijuana laws. In some cases, gun dealers may be hesitant to sell firearms to anyone who admits to using marijuana, even if it is legal under state law, for fear of running afoul of federal law.  For gun owners who use marijuana, the best course of action is to be aware of the legal risks and to take steps to mitigate those risks. This may include refraining from using marijuana or giving up firearms, depending on individual circumstances.  One option for gun owners who use marijuana is to seek legal advice from an attorney who specializes in firearms law. An attorney can help gun owners understand the risks and consequences of possessing firearms while using marijuana and can advise them on the best course of action.  Another option is to advocate for changes in the law. There have been efforts at both the state and federal level to change marijuana laws to allow for the use of marijuana without affecting the right to bear arms. For example, the Marijuana Opportunity Reinvestment and Expungement (MORE) Act, which was introduced in the US House of Representatives in 2020, would remove marijuana from the list of controlled substances and allow states to regulate its use. This would eliminate the conflict between state and federal law and allow gun owners who use marijuana to possess firearms legally.  Current Trends in the Law  Despite federal law making it illegal for marijuana users to possess firearms, the state of the law on this issue is evolving on a state level.  On February 3,2023 United States District Judge Patrick R. Wyrick of the Unite States District Court for the Western District of Oklahoma ordered the dismissal of criminal charges against Defendant Jared Michael Harrison on the grounds federal law prohibiting his ownership of firearms in connection with his lawful state use of marijuana is an unconstitutional restriction of his Second Amendment rights.  In Case No. CR-22-00328-PRW, the United State prosecutor made the following argument: 
  • Marijuana is illegal under federal law; 
  • Anyone that uses marijuana is a lawbreaker; and 
  • Lawbreakers aren’t part of “the people” whose rights are protected by the Constitution. 
  • Therefore, marijuana users aren’t entitled to Second Amendment rights. 
In Judge Wyrick’s 54 page Order, he states, “stripping someone of their right to possess a firearm solely because they use marijuana is inconsistent with the Nation’s historical tradition of firearm regulation.”  Lawful possession of marijuana under state law does not categorically render Mr. Harrison a presumptively risky person requiring restriction of his right to possess a firearm and there is no historical tradition or law requiring disarming person solely based on federal felonious conduct.  Instead, Second Amendment restrictions are based in support of disarming person that demonstrated violent, forceful, or threatening conduct.    In Mr. Harrison’s case he did not exhibit any of this conduct.  Instead, the US government was making “possession” itself the crime and that is an unconstitutional restriction.  In his conclusion, Judge Wyrick further states, “And so here we are, with the federal government now arguing that Harrison’s mere status as a user of marijuana justifies stripping him of his fundamental right to possess a firearm. For all the reasons given above, this is not a constitutionally permissible means of disarming Harrison.”  Oklahoma is not alone in challenging marijuana consumers rights to own firearms.  Similar cases are being argued or have been decided in Florida, Texas and elsewhere.  Additionally, Representative Alex Mooney (R-WV) introduced a bill to the 118th Congress to explicitly permit the sale, purchase and possession of firearms to users of medical marijuana.  Similar bills have been introduced in the past but have failed to gain traction but the more instances of federal acceptance that marijuana users have Second Amendment rights pave the way for millions of lawful state marijuana users; estimated to be 19% of the U.S. population in 2019.  Conclusion  The conflict between state and federal marijuana laws has created a confusing legal landscape that can impact the rights of citizens, particularly when it comes to the right to bear arms. Under federal law, anyone who uses marijuana is prohibited from possessing firearms, even if it is legal under state law. This creates a challenging situation for gun owners who use marijuana, who may be forced to choose between their right to possess firearms and their use of marijuana, and gun dealers that sell firearms to their customers.  For gun owners who use marijuana, it is important to be aware of the legal risks and to seek legal advice if necessary. Advocating for changes in the law can also help to eliminate the conflict between state and federal marijuana laws and protect the rights of gun owners who use marijuana. 
The views and opinions expressed in the article represent the view of the authors and not necessarily the official view of Clark Hill PLC. Nothing in this article constitutes professional legal advice nor is it intended to be a substitute for professional legal advice.  https://www.clarkhill.com/news-events/news/the-intersection-between-marijuana-and-the-2nd-amendment-what-gun-owners-need-to-know/