Previously, we’ve posted a blog explaining how to apply for a concealed carry license for a firearm and how to obtain a medical marijuana card in Pennsylvania. Since we’ve posted these articles, we’ve received questions about having a medical marijuana card and owning firearms. We will turn to the Bureau of Alcohol, Tobacco, Firearms and Explosives to get a good understanding about what federal law says about this issue.
The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has received a number of inquiries regarding the use of marijuana for medicinal purposes and its applicability to Federal firearms laws. The purpose of this open letter is to provide guidance on the issue and to assist you, a Federal firearms licensee, in complying with Federal firearms laws and regulations.
A number of States have passed legislation allowing under State law the use or possession of marijuana for medicinal purposes, and some of these States issue a card authorizing the holder to use or possess marijuana under State law. During a firearms transaction, a potential transferee may advise you that he or she is a user of medical marijuana, or present a medical marijuana card as identification or proof of residency.
As you know, Federal law, 18 U.S.C. § 922(g)(3), prohibits any person who is an “unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802))” from shipping, transporting, receiving or possessing firearms or ammunition. Marijuana is listed in the Controlled Substances Act as a Schedule I controlled substance, and there are no exceptions in Federal law for marijuana purportedly used for medicinal purposes, even if such use is sanctioned by State law. Further, Federal law, 18 U.S.C. § 922(d)(3), makes it unlawful 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 person is an unlawful user of or addicted to a controlled substance. As provided by 27 C.F.R. § 478.11, “an inference of current use may be drawn from evidence of a recent use or possession of a controlled substance or a pattern of use or possession that reasonably covers the present time.”
Therefore, any person who uses or is addicted to marijuana, regardless of whether his or her State has passed legislation authorizing marijuana 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. Such persons should answer “yes” to question 11.e. on ATF Form 4473 (August 2008), Firearms Transaction Record, and you may not transfer firearms or ammunition to them. Further, if you are aware that the potential transferee is in possession of a card authorizing the possession and use of marijuana under State law, then you have “reasonable cause to believe” that the person is an unlawful user of a controlled substance. As such, you may not transfer firearms or ammunition to the person, even if the person answered “no” to question 11.e. on ATF Form 4473.
It is legal under Pennsylvania law for the holder of a validly issued patient Medical Marijuana Card to possess approved forms of medical marijuana. However, as per the United States Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE), the possession of medical marijuana remains a violation of federal law, and possession of a valid Medical Marijuana Card and/or the use of medical marijuana makes you an “unlawful user of or addicted to any controlled substance” who is prohibited by federal law from the purchase or acquisition, possession, or control of a firearm pursuant to 18 U.S.C. § 922(g)(3), and 27 C.F.R. § 478.32(a)(3).
The BATFE’s position is set forth in its September 21, 2011, Open Letter to all Federal Firearms Licensees, which states in part that “[t]herefore, any person who uses or is addicted to marijuana, regardless of whether his or her State has passed legislation authorizing marijuana 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.” Click here for a copy of the Open Letter. Likewise, the mere possession of a Medical Marijuana Card will give rise to an inference that you are an “unlawful user of or addicted to” a controlled substance, pursuant to 27 C.F.R. § 478.11.
Therefore, it is also unlawful for you to apply for, possess or renew a Pennsylvania License to Carry Firearm (LTC), because you are “[a]n individual who is prohibited from possessing or acquiring a firearm under the statutes of the United States.” (Pennsylvania Consolidated Statutes Chapter 18, Section 6109(e)(1)(xiv).
Law Office of Vincent J. Caputo
If you are a PA resident, you have to make a choice. You can not have firearms and a medical marijuana card. If you or a loved one has been charged with a crime related to firearms or drugs, contact our experienced legal team immediately. Your future? Our priority!