In Florida, other states federal law requires a choice: Marijuana or gun?
For Vera Cooper, the time had come to buy a gun.
In her mid-70s at the time and widowed several years earlier, she was already feeling vulnerable, living by herself. Then came the tipping point: The plumbing business Cooper owns in the Florida Panhandle had to fire a worker, and he stormed out of the office, threatening vengeance.
At a nearby gun store she settled on a .22-caliber pistol that “felt good in my hand.” Then came the problem.
A question on the firearms transaction form she was required to complete asked whether she was an “unlawful user” of marijuana or any other drug categorized by the federal government as a controlled substance.
Cooper is registered in Florida’s medical marijuana program and relies on the drug to ease her chronic knee pain and sleeplessness. She answered the query accordingly and was told that as long as she held a marijuana card, buying a gun was not possible.
“I’d feel safer with a gun,” she said. But without the marijuana before bed, she said, she couldn’t sleep anyway. It was a tough choice.
There are relatively few limitations at the federal level on who is eligible to purchase or possess firearms and ammunition. The national background check system looks for issues like a criminal conviction, mental health problems, a dishonorable military discharge, unlawful immigration status or a domestic violence restraining order.
But even as a growing number of states have legalized marijuana, either for recreational or medical use, participating in a state’s medical marijuana system remains a barrier to gun ownership.
The issue is shaping up to be one of the next legal frontiers in the national debate over gun policy, as courts around the country are asked to determine whether the long-standing federal restriction on marijuana users conflicts with Second Amendment gun rights.
Medical marijuana is now legal in 38 states, the District of Columbia and four U.S. territories, and more than 3.5 million people are enrolled in state programs to use it to help with seizures, post-traumatic stress disorder, multiple sclerosis, Crohn’s disease, pain and other conditions.
The constellation of medicinal users, however, is certainly much larger since several states, including California, do not require registration, and two dozen states have also legalized recreational marijuana.
But the drug remains technically illegal under federal law, which classifies it as having no currently accepted medical use. One of the places the restriction is being enforced is in firearms shops. Users like Cooper say the situation is depriving them of their constitutional right to own a gun.
There have not been many prosecutions for lying about marijuana on a gun form or for being caught possessing both, but the penalties can be stiff. Knowingly making a false statement on the document, for instance, is a felony punishable by up to 10 years in prison and fines.
The Bureau of Alcohol, Tobacco, Firearms and Explosives has continued to issue warn
ings that possessing a gun as a marijuana user, either for medical or recreational purposes, is a serious crime.
Hunter Biden, the president’s son, was targeted under the law in September when he was indicted on charges of lying about his crack cocaine addiction when he bought a gun in 2018.
“What we have been seeing are dilemmas in which people who may benefit from medical marijuana, which in many cases has been recommended by a doctor, are forced to choose between effective health care and their gun rights,” said Howard Wolfe, a former ATF supervisor who consults on federal firearms policy for a law firm near Philadelphia.
Gun sales have been particularly robust over the past several years, with about 16.4 million sold last year, according to the National Shooting Sports Foundation, a firearms industry trade group, as more people look to guns as a means of self-defense.
Kevin Sabet, president of Smart Approaches to Marijuana, a group that opposes legalization, said it is prudent to prohibit both medical and recreational marijuana users from having firearms.
Stronger strains of marijuana, with higher levels of the psychoactive component THC than in decades past, as well as potent products like concentrates and edibles, can have adverse effects that result in violent behavior, Sabet said.
“We cannot keep viewing marijuana through the lens of Cheech and Chong because today’s marijuana can cause extreme paranoia, delusions and psychosis,” he said. “The mixture of weed and guns is a dangerous combination.”
Critics of the prohibition argue that marijuana generally has a mellowing effect while, by contrast, alcohol has a documented role in fueling aggressive behavior. They note that heavy drinkers are not barred from buying firearms under federal
law, although a number of states have laws that make it more difficult for people with alcohol problems to possess guns, and gun dealers have the option of not selling to someone who appears impaired.
“We don’t think anyone should have to surrender their constitutional rights to treat themselves with something far safer than alcohol,” said Karen O’Keefe, director of state policies for the Marijuana Policy Project.
In August the U.S. Department of Health and Human Services recommended that the Drug Enforcement Administration loosen federal restrictions on marijuana by reclassifying it, part of a review that President Joe Biden sought last year. The DEA has said it would examine the matter.
In the meantime, the courts have weighed in. In 2016, the 9th U.S. Circuit Court of Appeals held that a Nevada woman was not allowed to purchase a gun since she had a state-issued medical marijuana card — even though she had claimed that she did not actually use the drug.
But more recently challengers to the marijuana-gun prohibition have had some success in the courts, chiefly as a result of a U.S. Supreme Court decision last year that struck down a New York law that had placed strict limits on carrying guns outside the home. The court ruled that gun laws must be “consistent with this nation’s historical tradition of firearm regulation.”
Based on that standard, federal judges in Oklahoma and Texas, as well as the 5th U.S. Circuit Court of Appeals in New Orleans, found that blocking people who use marijuana from possessing firearms is a violation of their Second Amendment rights.
“You are starting to see cracks in the dam,” said William D. Hall, a lawyer representing Cooper and two other Florida residents in a lawsuit against the Justice Department.
The case in Oklahoma, which has legalized medical marijuana but allows no recreational use, started with Jared Harrison, who was driving to work at a marijuana dispensary when he was pulled over for a traffic violation in 2022. Police officers found a loaded revolver and marijuana in his car. Harrison, who told them he did not have a medical card, was arrested and ultimately indicted by a federal grand jury on a charge of possessing a firearm while being an unlawful user of marijuana.
Judge Patrick Wyrick of the U.S. District Court for the Western District in Oklahoma dismissed the case in February, writing that the federal law “takes a sledgehammer” to the right of armed self-defense. He contended that the use of marijuana was not “a violent, forceful or threatening act” nor did it carry any “of the characteristics that the nation’s history and tradition of firearms regulation supports.” Prosecutors said they have appealed the judge’s ruling.
In Florida, Cooper’s legal challenge last year was led by Nikki Fried, the chair of the state Democratic Party, who was then Florida’s agriculture commissioner. It was dismissed by a federal judge, but a federal appeals court heard oral arguments on an appeal last month. Fried, who did not run for reelection, is no longer a party to the lawsuit.
Some states have tried to deal with the prohibition by affirming the gun rights of marijuana users, although such measures cannot prevent federal prosecutions, and it remains a crime under various state laws to carry a firearm while under the influence.
In Delaware, which legalized medical marijuana in 2011, a statute enacted this year making recreational use lawful removed possession of the drug from the list of circumstances that prohibit someone from having a gun under state law.
Minnesota incorporated similar language into its law. Mississippi and Oklahoma have statutes providing that one cannot be denied the right to “own, purchase or possess” a firearm solely because that person is a medical marijuana patient or caregiver.
While those states cannot control the federal background check requirement, state medical marijuana programs generally do not ask card applicants whether they own a gun. That creates an opportunity for people to buy a gun first and then obtain a marijuana card.
Don Spencer, president of the Oklahoma Second Amendment Association, says he provides this advice: “You better acquire all the firearms you want before you apply for that marijuana card.”
The federal government’s stance on medical marijuana and guns has also been a complicating factor for veterans, many of whom hold armed security jobs and rely on the drug to treat symptoms of PTSD, traumatic brain injuries and other health complications.
“So they are just lying when they go to buy a gun or on their applications for their jobs,” said Sean Kiernan, CEO of the Weed for Warriors Project, a nonprofit group that helps veterans get access to free or discounted medical marijuana.
Kiernan noted that some veterans are buying firearms or marijuana — or both — in the illegal marketplace so there is no official record. And some, he said, are making their own so-called “ghost guns” at home.
With veterans in mind, Rep. Brian Mast, R-Fla., who is a veteran himself, reintroduced the Gun Rights and Marijuana Act in April. The bill, which Mast’s office said is pending in the House Judiciary Committee, would allow marijuana consumers to purchase guns in states where medical or recreational use is allowed.