Utahns Balancing Second Amendment Rights and Medical Cannabis
Disclaimer: The following content is for informational purposes only and is not intended as legal advice. For advice on specific issues or problems, please consult an attorney. Nothing in this article establishes an attorney-client relationship between Salt Baked City, J. D. Lauritzen, and the reader.
When it comes to the conflict between state and federal cannabis laws, perhaps the most uncertainty surrounds the gun rights of cannabis users. Whether it involves gun ownership or gun sales, federal law has serious implications for gun-owning cannabis users and those businesses or persons that may sell guns to those users. Despite the harsh consequences that gun-owning cannabis users (and public/private gun sellers) may face under federal law, Utah lawmakers have instituted specific second amendment protections for medical cannabis patients. This article will explore federal gun laws and the corresponding implications for cannabis users, while also examining the protections implemented by Utah lawmakers. It will also discuss the current trends under federal law and the hot-button issue of concealed carry permits.
Like Oil & Water – Guns and Cannabis Under Federal Law
As most are aware, high-THC cannabis remains illegal under federal law. Indeed, despite the fact that cannabis is legal in one form or another across the majority of the country, cannabis is still listed as a Schedule I substance under the Controlled Substances Act. Due to its continued federal illegality, cannabis users (even those legal users) are subject to federal prosecution and the other various issues created by the inconsistencies between state and federal cannabis laws. One such issue is gun possession/ownership.
Despite the fact that the Second Amendment protects the rights of all citizens to bear arms, it remains federally illegal for anyone who uses cannabis to own a firearm. This is due to cannabis’ continued classification as a Schedule I substance. Under both the Federal Gun Control Act of 1968 and the Federal Omnibus Consolidated Appropriations Act of 1997, individuals who are unlawful users of or addicted to narcotics or any other controlled substance (including cannabis) are prohibited from shipping, transporting, receiving, or possessing firearms or ammunition. The use of the terms “unlawful” or “addicted” in both acts may lead some to believe that as long as they are using cannabis legally or do not consider themselves an addict, they are not subject to the prohibition against cannabis users owning guns. However, that is simply not the case.
To avoid any confusion about the federal government’s stance on guns and cannabis, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has issued guidance stating that anyone who uses cannabis is considered an “unlawful user” of a controlled substance and is prohibited from possessing firearms. The ATF has further clarified that “any person who uses or is addicted to [cannabis], regardless of whether his or her state has passed legislation authorizing [cannabis] 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.”
Between a Rock and a Hard Place – The Impact of Federal Illegality
The continued federal illegality of cannabis and its implications for firearms create numerous challenging situations for both gun owners and sellers. Gun owners who use cannabis may face severe legal consequences simply due to their cannabis usage while owning or possessing a firearm. The potential for these harsh consequences often forces cannabis users to make the difficult decision between their cannabis use and exercising their Second Amendment rights. This decision is especially challenging for medical patients who rely on cannabis as a form of medicine.
Setting aside the federal illegality of cannabis use and firearm possession, let’s examine the process when a cannabis user attempts to purchase a gun. If buying from a public seller, they must complete ATF Form 4473, which includes a question about unlawful drug use. Despite legal cannabis use in some states, the ATF warns that federal law still deems it illegal. Consequently, cannabis users face a choice: truthfully answer and be unable to buy a gun, or provide false information, risking federal perjury charges. Even without perjury charges, possessing a firearm as a cannabis user carries severe federal penalties, up to 10 years in prison.
Given that public gun sellers require background checks for firearm purchases, some readers may consider that cannabis users wanting to buy a gun should turn to private sellers. While it is true that private firearm sellers are not required to perform background checks, federal law still imposes specific requirements on them regarding cannabis and other controlled substances. According to the ATF, an unlicensed individual can transfer a firearm to another unlicensed individual residing in the same state, provided there is no reason to believe the buyer is prohibited by law from possessing firearms. However, if someone knows or has reasonable cause to know that an individual attempting to purchase a firearm from a private seller is a prohibited person (as cannabis users are), it becomes a federal felony to sell a firearm to such a person. The buyer would also face similar penalties as previously discussed.
A Beacon of Hope – How Federal Courts Are Protecting Cannabis Users
Although the situation remains complex for gun-owning cannabis users under federal law, two recent rulings by federal district courts have deemed the federal laws prohibiting lawful cannabis users from owning firearms as unconstitutional. In February, a federal judge in Oklahoma dismissed criminal charges against a defendant, citing that the federal law prohibiting firearm ownership for individuals using cannabis legally in their state violates the rights protected by the Second Amendment. The judge concluded in the dismissal order that depriving someone of their right to possess a firearm solely based on cannabis use is inconsistent with the historical tradition of firearm regulation in the nation.
Oklahoma is not the sole state challenging the rights of cannabis consumers to own firearms. Another notable case from a federal court in Texas involved the dismissal of charges against an El Paso resident, who had been convicted in 2021 for possessing and selling a firearm as an admitted cannabis user. The judge, being explicit in their statement, remarked that it is difficult to believe that participating in such a widespread practice could make an individual so dangerous or untrustworthy that their Second Amendment rights must be revoked. The judge emphasized the questionable nature of stripping individuals of their Second Amendment rights based on cannabis use.
Apart from the aforementioned cases, there are at least two additional federal cases currently challenging the constitutionality of the ban on cannabis users from owning or possessing firearms. Moreover, there is a federal bill known as the Second Amendment Protection Act, which aims to explicitly authorize the sale, purchase, and possession of firearms for medical cannabis users. Although the bill may encounter difficulties, similar to any federal cannabis legislation, it signifies a potential shift in the landscape concerning the intersection of guns and cannabis under federal law.
Doing The Right Thing – How Utah Lawmakers Have Protected Patients
In contrast to federal lawmakers, Utah legislators have taken specific measures to safeguard the gun rights of medical cannabis users. According to Utah Code section 58-37-3.8, law enforcement officers are prohibited from utilizing state or local resources, including their time, to effect an arrest or seizure of cannabis, or conduct an investigation solely based on the belief that the activity constitutes a violation of federal law if the officer has reason to believe it complies with state medical cannabis laws. Furthermore, officers are not allowed to enforce laws that restrict an individual’s right to acquire, own, or possess a firearm solely based on their possession or use of cannabis in accordance with state medical cannabis laws. Additionally, they are prohibited from providing any information or logistical support to federal law enforcement authorities or prosecuting entities.
In addition to shielding gun-owning medical cannabis users from law enforcement, the Utah legislature has gone further by enacting explicit protections that permit patients to possess a firearm while under the influence of medical cannabis. While Utah law generally prohibits individuals under the influence of alcohol or drugs from possessing a dangerous weapon, an amendment to Utah Code section 76-10-528 excludes this prohibition for lawful medical cannabis users. This provision acknowledges the unique circumstances of medical cannabis use and allows for the possession of a firearm by individuals under the influence of medical cannabis in accordance with the law.
To Concealed Carry or Not to Concealed Carry – Challenges Surrounding Concealed Carry Permits and Cannabis Use
One of the most frequently discussed issues regarding guns and cannabis revolves around concealed carry permits. Due to the reciprocity between states and the involvement of federal law in the issuance of concealed carry permits, even lawful cannabis users may face challenges in obtaining or maintaining their permits. The Utah Bureau of Criminal Identification (BCI) offers the following guidance concerning concealed carry permits. Firstly, if a Utah resident with a medical cannabis card applies for a concealed carry permit and BCI becomes aware of their medical cannabis card, the application will be denied. Secondly, if an individual already holds a concealed carry permit and subsequently obtains a medical cannabis card, their concealed carry permit will be revoked if BCI discovers this information. Lastly, if law enforcement encounters an individual possessing a firearm and a medical cannabis card, the officer cannot confiscate the person’s concealed carry permit but is allowed to notify BCI. In the event of notification, it is highly probable that the person’s concealed carry permit will be revoked.
For gun owners who prioritize having a concealed carry permit, they may find themselves facing a difficult choice between their cannabis use and their ability to obtain such a permit. Regrettably, this is the present reality surrounding concealed carry permits. However, there may be a glimmer of hope for those seeking the right to concealed carry. Utah implemented the concept of constitutional carry a few years ago, granting gun owners the ability to concealed carry without a permit. For cannabis users who desire concealed carry but are concerned about the challenges associated with obtaining a permit, constitutional carry might offer the most viable option.
High Time For Change – Why the Feds Should Act to Protect the Gun Rights of Lawful Cannabis Users
The conflicting state and federal cannabis laws have created a complex and precarious legal landscape regarding the gun rights of cannabis users. Under federal law, even lawful cannabis users are strictly prohibited from possessing firearms, leading to a challenging dilemma for those individuals. Public and private gun dealers also face difficulties when selling firearms to cannabis users. To protect the Second Amendment rights of law-abiding cannabis users, federal lawmakers should enact reforms, and the Department of Justice should support such changes and refrain from contesting relevant litigation.
