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By Justin F. Kissell
November 6, 2019, will mark 23 years since California became the first state to legalize marijuana for medical use, and 5 years since Colorado became the first state to legalize recreational marijuana. During that time period a total of 33 states have legalized medical marijuana, and 10 have legalized recreational use.[1] Massachusetts is one of the more recent states that legalized marijuana for recreational use in 2016. The marijuana industry is booming. As of 2017, estimates say the market size is between $20-23 billion.[2]
For marijuana advocates this is a good sign, as the dominos begin to tumble and more states experiment with the legalization. This however poses some trouble as state legalization laws conflict with the federal Comprehensive Drug Abuse Prevention and Control Act.[3] Though federal law pre-empts state law in this regard, federal enforcers have declared that enforcing marijuana law is not a top priority as states undertake the process of legalization.[4] The problem with conflicting legal standards is that it may affect the constitutional rights of certain people. One of the major issues is that users of legal recreational and medical marijuana lose their right to possess firearms, despite this being held as a fundamental right by the Supreme Court.[5]
Section (g)(3) of the Federal Gun Control Act states, “it shall be unlawful for any person, who is an unlawful user of, or addicted to a controlled substance,” to possess a firearm.[6] The Federal Controlled Substances Act still classifies marijuana as both illegal at the federal level and a schedule one drug (in the same class as heroin and a higher class than cocaine and meth).[7] Schedule one drugs are defined as a “drug with no currently accepted medical use, and a high potential for abuse.”[8] Thus, this discrepancy between state legalization laws and federal drug law impedes the fundamental right of marijuana users to bear arms.
When buying a firearm, customers are required to fill out an ATF 4473 form which records the identifying information of those who purchase guns through licensed dealers. Question 11(e) on this form asks specifically if the buyer is “a user of, or addicted to a controlled substance.”[9] Those who use recreational and medical marijuana are obligated to answer “yes” to this question which means they will barred from purchasing a firearm. Theoretically, an individual using recreationally legal marijuana could answer “no” and, although illegal, still receive their firearm. This is not the case for those who are medical marijuana patients.
Most states record the names of those who are prescribed medicinal marijuana and require medicinal marijuana cards as a sort of license to buy. Individuals who are given access to these cards via prescription are recorded in a data base. This means that if an individual who is prescribed marijuana tries to bypass the system by not answering question 11(e) on the ATF form, a background check will show that these people are in violation of the controlled substance act. This essentially leaves no way for an individual prescribed medical marijuana to exercise their right to bear arms. On top of this, the U.S. Department of Justice, expressed in an open letter that a seller “having a reasonable cause to believe” that a customer is an unlawful user of, or addicted to a controlled substance may not sell arms to that person.[10] The letter went on to specify that under no circumstance is an individual able to acquire a firearm if they use or are addicted to marijuana even if state law allows and they are prescribed the substance.[11] It is important to note that there is no other prescribed medicine that suspends an individual’s right to bear arms like medical marijuana.
The deprivation of this right has actually been upheld in a federal court in Nevada.[12] In this case the court held that section 922(g)(2) of the Gun Control Act was constitutional, citing that gun rights have historically been held to not be without limits.[13] Explaining that “habitual drug users, like career felons and mentally ill, more likely will have difficulty exercising self-control, particularly when under the influence of a controlled substance.”[14] Once again, medical marijuana is the only prescription that statutorily suspends an individual’s constitutional right to bear arms.
Pennsylvania has found a way to work around this, by simply not keeping records of who is prescribed medical marijuana.[15] This does not change the legality issue, rather it simply circumvents it until a better policy is implemented. If states wish to maintain the full rights of their citizens while allowing them to be prescribed the medicine they wish to take, this may be the only method that will work. That being said, if something were to happen where the state needed to see the records, there would be none to reference. Either Congress or a Circuit Court of Appeals will have to address this issue.
The Controlled Substances Act was upheld as constitutional in Gonzales v. Raich.[16] A way to circumvent this would be to lower the classification level of marijuana. To change marijuana’s class to permissible for prescription use, the Food and Drug Administration requires an immense amount of research. Researchers have not conducted enough comprehensive research to show the benefits of medical marijuana. Despite doctors prescribing medical marijuana to relieve the symptoms of HIV/AIDS, multiple sclerosis, inflammation, pain, seizures, substance abuse disorders, mental disorders, and relief from chemotherapy side effects, the FDA will still require more research before changing the classification. Certain medications that contain derivatives of marijuana have been approved by the FDA, but the FDA still considers marijuana itself as having no accepted medical use. Considering the lack of congressional movement in this area, it may be best to appeal a case in another circuit with the hopes of receiving a different result than the Nevada district court.
When two circuits split on the medical marijuana issue, the Supreme Court may feel more obligated to take a case that will decide this issue. This would truly be an interesting decision for the Supreme Court to make, as the liberal minority will most likely vote against gun rights, but at the same time wish not to impede on those whom choose to undertake medical marijuana treatment. The conservative majority will likely support gun ownership rights, but will be against the use of medical marijuana. Most likely, the Court would rule in favor of the right to bear arms for medical marijuana users. The Court’s conservative majority and the fact that there is no other prescription drug that directly inhibits this right would likely lead to this result. The Court would also likely rely on the sheer numbers of individuals choosing medical marijuana to justify its decision, with estimates of medical marijuana users hovering around 3,099,000 patients (as of July 10, 2019).[18]
Medical marijuana presents a great alternative to other prescription medicines on the market, a fact reflected in the 33 states and District of Columbia that have legalized it for medical use. That being said, it does not come without tradeoffs. The choice to undertake medical marijuana treatment comes with an indefinite suspension of the right to bear arms. While this might not be a problem for many people, some individuals will have to choose between a medical treatment and a fundamental right. Protecting the rights of citizens by circumventing recording requirements, like Pennsylvania, creates a problem all its own. This issue needs to be addressed at a high level. Perhaps Congress may finally lower marijuana’s classification in the statutory schedule system. After all, how can a drug that prescribed in 33 states really be compared to heroin? Patients should not have to choose between their medicine of choice and enjoying a fundamental right.
Justin F. Kissell is a 2L day student at Suffolk University Law School and a staff member of the Journal of Health and Biomedical Law. Justin is interested in pursuing a career in real estate law. As a staff member he is working on a note about German health care regulation.
Disclaimer: The views expressed in this blog are the views of the author alone and do not necessarily represent the views of JHBL or Suffolk University Law School.
FOOTNOTES
[1] State Marijuana Laws Map, Governing.com/gov-data/safety-justice/state-marijuana-laws-map-medical-recreational.html.
[2] Pat Evans, 8 Incredible Facts About the Booming US Marijuana Industry, Markets Insider (May 7, 2019), markets.businessinsider.com/news/stocks/weed-us-marijuana-industry-facts.
[3] PharmD L. Anderson, CSA Schedules (May 18, 2018), drugs.com/csa-schedule.html.
[4] Derek J. Connor, Esq, Gunsmoke: Medical Marijuana and Firearms in Nevada, 23 Nov NvLaw 12 (2012).
[5] See District of Columbia v. Heller, 554 U.S. 570 (2008); McDonald v. City of Chicago, 561 U.S. 742 (2010).
[6] 18 U.S.C. § 933(d)(3) (2012).
[7] See United States Drug Enforcement Agency, www.Dea.gov/drug-scheduling.
[8] Id.
[9] Ben Findley, Gun Ownership and Marijuana Use and Laws, usacarry.com/gun-ownership-marijuana, (June 25, 2019).
[10]Assistant Director Arthur Herbert, Open Letter to All Federal Firearms Licensees, U.S. Department of Justice: Bureau of Tobacco, Alcohol, Firearms and Explosives (2011).
[11] Id.
[12] See Wilson v. Holder, 7 F.Supp.3d 1104 (D. Nev. 2014).
[13] Id at 1116.
[14] Id.
[15] Spence Purnell, Medical Marijuana Patients are Being Denied Gun Rights, Reason Foundation, (March 7, 2019), reason.org/commentary
[16] See Gonzales v. Raich, 545 U.S. 1 (2005)
[17] Medical Marijuana: Know the Facts, While the Drug Therapy is Becoming More Widely Available, the Science is Still Not Clear on How It May Help, Harvard Health Publishing (Oct., 2017), http://www.health.harvard.edu/staying-healthy/medical-marijuana-know-the-facts.
[18] See Medical Marijuana Patients Numbers, https://www.mpp.org/issues/medical-marijuana/state-by-state-medical-marijuana-laws/medical-marijuana-patient-numbers/.
OTHER SOURCES
http://www3.nssf.org/share/PDF/ATFOpenLetter092111.pdf
https://boston.curbed.com/2018/6/29/17514824/marijuana-massachusetts-what-to-know
https://www.usacarry.com/gun-ownership-marijuana/
https://reason.org/commentary/the-absurdity-of-medical-marijuana-and-firearms-laws/
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5312634/
https://medicalmarijuana.procon.org/view.timeline.php?timelineID=000026
https://www.dea.gov/drug-scheduling
https://www.drugabuse.gov/publications/drugfacts/marijuana-medicine
https://www.health.harvard.edu/staying-healthy/medical-marijuana-know-the-facts