Guns, marijuana don’t mix under fed law
Q: The fact that marijuana remains illegal under federal law has ramifications for those who wish to exercise their right to keep and bear arms. How so?
A: Federal law has a lot to say about both firearms and controlled substances. And if you’re a gun owner who wants to apply for a valid medical marijuana license, the news isn’t good. If you possess a valid patient or commercial medical marijuana license in Oklahoma, your right to possess a firearm or even ammunition is severely restricted under federal law. Even sellers of guns and ammo are at risk for criminal prosecution if they don’t carefully vet their buyers. Bottom line: Guns and marijuana don’t mix under federal law.
Q: What do sellers of firearms and ammo need to know? A: Federal firearms law makes it a crime 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 a person is an unlawful user or addicted to” marijuana. Consequently, it’s illegal to sell firearms or ammo to any person who holds a medical marijuana patient license. It’s important to note that this federal restriction applies to “any person,” which means private sellers would be affected along with federal firearms licensees. Those who sell guns and ammo without properly vetting their buyers open themselves up to criminal liability.
Q: What firearms restrictions are placed on medical marijuana users?
A: According to federal law, it is illegal for any person “who is an unlawful user of ... any controlled substance ... to 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.” Since almost every firearm is “shipped or transported in interstate or foreign commerce” and every firearms purchaser “receives” the firearm, it would appear that possession of a firearm by a medical marijuana patient licensee could also be a crime. The U.S. Department of Justice Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has confirmed this assessment, saying the federal prohibition on marijuana trumps any state laws legalizing the substance. Therefore, anyone who uses marijuana is prohibited by federal law from possessing firearms or ammunition.
Q: Are marijuana users required to disclose the fact that they hold a valid state-issued medical marijuana license when buying a firearm?
A: A purchaser of a firearm from a federal firearms licensee must complete ATF Form 4473. Question 11(e) asks “Are you an unlawful user of ... marijuana ...” Answering “Yes” automatically disqualifies the purchaser from the purchase of a firearm. Answering “No” when the answer should have been “Yes” could result in punishment of the responder by up to 10 years in prison and a $250,000 fine. Obviously, federal firearms licensees should not complete sales to holders of patient medical marijuana licenses. In a private sale where no Form 4473 is completed, the seller should not sell to anyone that they “know” uses marijuana or anyone that they “have reasonable cause to believe uses” marijuana, such as in instances where they know the purchaser has a patient medical marijuana license.
Q: How are commercial license holders — such as growers, processors and distributors — affected by this law?
A: With current banking restrictions, marijuana businesses are cash businesses. As such, many owners and employees may consider carrying a firearm for protection from thieves. For those that do, it’s important that they understand that it is a federal sentencing enhancement to use or carry a firearm during a “drug trafficking crime.” Such crimes are defined as felonies punishable under the Controlled Substances Act and include the manufacturing, distribution and dispensing of marijuana. While it is also a crime in Oklahoma to possess a firearm in the commission of a felony, it is highly unlikely that Oklahoma law enforcement would pursue this charge as long as the activity was lawful under state law. These restrictions probably aren’t an issue until the owner or employee of the grower, processor or distributor uses the firearm for its intended purpose — namely, to protect the operation from loss and the other employees from bodily harm. If inside the home or business, the Castle doctrine should apply. But, outside the home or business, the shooter cannot obtain the protections of Oklahoma’s Stand Your Ground law if “engaged in an unlawful activity.” So even if no criminal prosecution were brought, the argument in a civil case would be that the shooter was liable for damages because the shooter was engaged in an activity unlawful under federal law.