The FBI has stated that being a registered medical marijuana grower or caregiver does not automatically disqualify you from owning firearms. The FBI says that merely having a medical cannabis card does not disqualify a person.
In the midst of the tensions between federal gun policy and the expanding state marijuana legalization movements, a FBI memo from the year 2019 provides a glimpse into the confusing legal interpretations around cannabis and firearms — an issue that has recently been raised in several federal court cases.
According to a memo from the FBI’s Criminal Justice Information Services Division (CJIS), which was briefly mentioned in a article by The New York Times, last week, the government uses several different methods for assessing firearm eligibility when it comes to cannabis. In some cases that means restricting gun rights on the basis of activities or documentation, which doesn’t mean that a person is a marijuana consumer.
Federal rules state that a person who is an “illegal user” of marijuana or other controlled substances, such as cocaine, cannot purchase or possess a firearm. Before making a gun purchase, potential buyers must disclose their marijuana use on a Bureau of Alcohol, Tobacco, Firearms and Explosives form. Lying on this form is a serious felony.
Over the last couple of years the statute that backed that prohibition was challenged in federal courts, and more than one court ruled that it was unconstitutional. The Department of Justice has, however, steadfastly supported the ban. They claim that medical marijuana users and regular consumers present unique dangers for society, which justify withholding Second Amendment Rights.
The federal government’s interpretation is more nuanced as shown by the memo published in the National Instant Criminal Background Check System Section of CJIS more than four year ago.
The FBI states that the “current” status of the controlled substance does not mean that it was used on a specific day or in the last few days. It means that the drug use is recent enough that it indicates that the person is actively involved.
The memo states: “ATF determined that the current time is represented by a time period within the last 12 months.”
Making the determination involves “drawing an inference of current possession or use” from “evidence of recent possession or use” or “a pattern of possession or use that is reasonable for the present time.”
It’s not so easy to define what constitutes “evidence”.
The document states that, for example, if someone admits using marijuana, or if they “are in possession of a card indicating medical marijuana use,” this is “enough evidence to establish an implied current use of the federal drug prohibition,” even without any additional proof of actual use. The information can be obtained by someone admitting to having a medical marijuana card, or by showing a copy within the last year.
The following scenarios will determine the period of disqualification for possession of a card indicating medical marijuana use:
1. The expiration date of your medical marijuana card;
2. If no expiration date has been provided, one year after the date the card was ‘admitted’ into possession.
3. “One year after the date that the medical marijuana card is resigned.”
The memo makes exceptions for gun owners who are identified as “medical cannabis caregivers, growers, providers, etc.”
FBI: “Use (of marijuana or other controlled substances) must be proven for prohibition to exist.” The FBI says that an individual can have a medical marijuana card and be a caregiver, grower or provider of another party. However, they would not be disqualified unless the use was proven.
The memo also contains other rules that apply to all controlled substances, but are notable for their administrative specificity.
When a person has been convicted for possession or use, the FBI considers that evidence as proof of current use in the past year, regardless of how long it’s been since the arrest. When a person has been arrested, but their conviction was deferred for some reason (e.g. This judgment cannot be used to prove current use. The memo states that the information should be obtained from the arrest report.
Arrests for possession of drug paraphernalia do not automatically disqualify you from owning a firearm. Such an arrest within the last year can be investigated to see if it shows that the person admitted to using or possessing a controlled substance when they were arrested for paraphernalia.
Under certain circumstances, drug tests can be used to limit gun rights. The memo states that a dog’s detection of a controlled substance or an officer’s assessment cannot be used to prove drug use. However, an incident report describing a “baggie with a ‘green-leafy material’ in the subject’s shirt pockets” can be considered evidence.
It is not clear whether any of the rules outlined in the 2019 memorandum have been revised or updated since they were issued. Marijuana Moment contacted the FBI to get clarification but no representative was available.
Since the publication of the document, many more states have passed laws legalizing marijuana for recreational or medical use. The growing gap between state and federal marijuana legislation has led to legal challenges against the ban.
The Biden administration claimed that cannabis consumers with guns pose a unique danger to society, in part because they’re “unlikely” to store their weapon properly. The Biden administration claimed that cannabis consumers who own guns are a special danger to society. This is because they’re ‘unlikely’ to store their weapons properly.
In a brief filed in the case, attorneys from the Justice Department argued that the firearm ban for cannabis consumers is justified by historical analogies to restrictions imposed on the mentally ill or habitually intoxicated during the period of the Second Amendment ratification in1791.
The federal government has claimed repeatedly that these analogues support limiting the gun rights of cannabis users. But a number of federal courts have ruled the marijuana-related prohibition unconstitutional . This has led DOJ to appeal several ongoing cases.
In October, the Justice Department made similar arguments during oral argument in a related but separate case before the U.S. Court of Appeals Eleventh Circuit. This case is about the Second Amendment rights for medical cannabis patients living in Florida.
The attorneys in both cases also mentioned a ruling by the U.S. Court of Appeals of the Fifth Circuit from August, Daniels v. United States. This decision found that the ban prohibiting people who use cannabis from possessing firearms was unconstitutional.
DOJ had informed the Eleventh Circuit Court that it believed the ruling to be “incorrectly determined,”, and the department’s lawyer reiterated the government’s view that “there are reasons to doubt the foundations” in the appeals court’s decision.
In February, the U.S. District Court for the Western District of Oklahoma ruled that the prohibition against people using marijuana possessing firearms was unconstitutional. The judge stated that the federal government’s justification for maintaining the law is “concerning.”
In U.S. District Court for the Western District of Texas, a judge ruled in April that banning people who use marijuana from possessing firearms is unconstitutional–and it said the same legal principle also applies to the sale and transfer of guns.
ATF wrote to Arkansas officials in August to warn them that a recently passed law allowing medical cannabis patients to get concealed carry licenses, “creates unacceptable risks” and could compromise the state’s alternative firearm licensing policy, which was approved by the federal government.
issued a warning shortly after Minnesota’s Governor signed the legalization bill in law. The agency reminded that cannabis users are prohibited from purchasing or possessing firearms and ammunition until federal prohibition is lifted.
ATF will issue an advisory in 2020 that specifically targets Michigan and requires gun sellers conduct federal background checks for all unlicensed buyers. It said Michigan’s cannabis laws allowed “habitual marijuana consumers” and other disqualified persons to obtain firearms without a license.
Attorneys for President Joe Biden’s son Hunter, who has been indicted over a charge that he bought a gun during a period when it was revealed that he used crack cocaine, have cited the previous court ruling on the constitutionality of the federal ban and argued that this applies to their case.
Two Republican members of Congress have introduced two bills in this session, focusing on marijuana and gun policy.
Rep. Brian Mast, co-chairman of the Congressional Cannabis Caucus and a member of the House of Representatives, introduced legislation in May that would protect the Second Amendment right of marijuana users in states where the drug is legal. This bill would allow them to buy and possess firearms, which they are currently prohibited to have under federal law.
Senate Majority leader Chuck Schumer (DNY) has promised to attach that legislation to the bipartisan marijuana banking Bill, which advanced out of Committee last month and awaits floor action.
Mast is also sponsoring a separate Bill from Rep. Alex Mooney (R-WV), in this session, which would allow medical marijuana patients to buy and possess firearms.
Jersey City, New Jersey is one place where this issue is of particular relevance. Mayor Steven M. Fulop, (D), is suing the state over its policy which allows police officers to smoke marijuana when they are not on duty.
This challenge has, however, sparked pushback by two police officers who have sued Jersey City for what they claim is a political motivated move made by Fulop to serve a future gubernatorial election.
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