Medical Marijuana and Guns

With the recent changes in Maryland law concerning medical marijuana, see MD Code, Health - General, § 13-3304 et seq., and the push to legalize the use of marijuana in Maryland, a recurring issue is how such marijuana use would affect your Second Amendment rights.  The short answer is that it may well act to abrogate those rights by (1) barring a FFL from selling a firearm to such a user and (2), by making such a user a prohibited person under federal law.

1.  As to FFLs, the pertinent statutory provision under federal law is 18 U.S.C. 922(d)(3), which provides:

(d) It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person--

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(3) is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802));

The ATF has issued a bulletin to all Federal Firearms Licensees that advises FFLs that "if you are aware that the potential transferee is in possession of a card authorizing the possession and use of marijuana under State law, then you have 'reasonable cause to believe' that the person is an unlawful user of a controlled substance."   See Open Letter to All Federal Firearms Licensees, Sept. 21, 2011, available at www.atf.gov/file/60211/download.  That means that the FFL (or any other person with such knowledge) is prohibited from selling a firearm to such a person with a medical marijuana card.  Indeed, both federal form 4473 and state form 77R specifically state that medical marijuana users may not purchase firearms.  

2.  As to becoming a disqualified person, a user of marijuana may well be a disqualified person under 18 U.S.C. 922(g)(3) which states:

(g) It shall be unlawful for any person--

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(3) who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)); to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

A violation of these provisions is a felony.  See 18 U.S.C. 924. Both of these provisions define the term "unlawful user" by reference to the Controlled Substances Act, a federal law. A "controlled substance" under federal law specifically includes marijuana as marijuana is specifically classified as a Schedule I controlled substance under the Controlled Substances Act, 21 U.S.C. § 812(c).  See also ATF regulations 27 C.F.R. § 478.11. A user of marijuana is an unlawful user under that federal law. Period.  Indeed, while the medical marijuana law of Maryland permits the use of marijuana under the tightly controlled circumstances specified in that law, the mere possession of marijuana in Maryland remains otherwise illegal in any other circumstance. See Robinson v. State, 451 Md. 94 (2017). That is so even though possession of small amounts of marijuana has also been decriminalized in Maryland. See Robinson, 451 Md. at 98 ("Simply put, decriminalization is not synonymous with legalization, and possession of marijuana remains unlawful.").

3.  While the government does not have free rein in what it can illegalize under the Second Amendment (see, e.g., United States v. Chovan, 735 F.3d, 1127 (9th Cir. 2013) (Bea, J. concurring), these provisions have withstood attack in the courts. For example, the Ninth Circuit (a very liberal circuit) has sustained this federal disqualification in the context of medical marijuana users on grounds that "empirical data and legislative determinations support a strong link between drug use and violence. As to the first, studies and surveys relied on in similar cases suggest a significant link between drug use, including marijuana use, and violence. See United States v. Carter, 750 F.3d 462, 466–69 (4th Cir. 2014) (citing and discussing four studies and two government surveys); United States v. Yancey, 621 F.3d 681, 686 (7th Cir. 2010) (per curiam) (citing all but one of the studies and surveys in Carter, plus one additional study). "  Wilson v. Lynch, 835 F.3d 1083, 1093 (9th Cir. 2016). The court concluded that Congress reached a "reasonable conclusion that the use of such drugs [including marijuana] raises the risk of irrational or unpredictable behavior with which gun use should not be associated."  Id at 1094. It is certainly within the power of Congress to change federal law, but until it does, marijuana users remain "unlawful users" of a controlled substance under federal law, regardless of whether such use is permitted by state law.  Of course, the states would have to change their laws as well, as the classification of "unlawful user" includes both federal and state laws.

 

Latest News

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On May 28, 2021, Maryland Shall Issue, Engage Armament, ICE Firearms & Defensive Training, and several residents of Montgomery County, Maryland, filed suit against the County, challenging its enactment of Bill 4-21. That Bill criminalizes the mere possession of privately made firearms without providing compensation and redefines the meaning of "place of public assembly" to encompass virtually the entirety of Montgomery County just in order to criminalize otherwise perfectly lawful firearms possession in the home and elsewhere. The suit seeks declaratory and injunctive relief and an award of damages, including punitive damages. 

You can read the complaint HERE.

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Hulbert v. Pope goes to Trial!



We at Maryland Shall Issue send our deepest condolences to the family and friends of Jeff Hulbert. Jeff passed this morning (5/3/2021) surrounded by his loved ones after a lengthy and valiant battle against cancer. He was an outspoken and stalwart proponent of individual rights and a fierce supporter of the Right to Keep and Bear Arms. Jeff founded the Patriot Picket, a group that "hits the bricks" with stylized signs and pointed political messages in promotion and defense of those rights. Please keep the Hulbert family in your thoughts and prayers as we remember and honor Jeff.



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The First Amendment protects the right to advocate so in fundamentally important ways, the First Amendment helps protect the Second Amendment. The Fourth Amendment protects against unreasonable searches and seizures, including unlawful arrests. So when two MSI members, Jeff and Kevin Hulbert, were arrested on the sidewalks of Annapolis on the evening of February 5th, 2018 for holding edgy signs that criticized the powers that be in the General Assembly, MSI and the Hulberts swiftly filed suit in federal court in Baltimore for a violation of their First Amendment and Fourth Amendment rights. The arresting officers were named as defendants, but they are represented by counsel from the State Attorney General's Office.

Video of arrests on 2/5/2018 - "1st Amendment Under Attack"

In an opening gambit, the defendants first moved to dismiss the complaint for failure to state a claim, but that effort failed when the Court didn't buy it. Then extensive discovery ensured, which was delayed with the pandemic. That discovery showed that the arrests that night stemmed from a call from the Governor's mansion to have the group moved because the "mansion" did not want to be bothered with questions or attempts at conversations by the protestors. Everyone (including the defendants and other officers at the Capitol Police) admitted that these orders came from the "mansion," but, amazingly, no one at the "mansion" could identify who gave the orders. We did discover that such orders happen as often as twice a month, or whenever someone at the "mansion" decides that the "mansion" does not want to deal with completely peaceful protestors lawfully exercising their First Amendment rights. We can only wonder at the identity of this "mansion" person.

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Contact Info

Headquarters:

Maryland Shall Issue®, Inc.
9613 Harford Rd
Ste C #1015
Baltimore, MD 21234-2150

Phone:  410-849-9197
Email: 
Web:   www.marylandshallissue.org