{"id":10182,"date":"2016-10-20T07:44:50","date_gmt":"2016-10-20T11:44:50","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/crcl\/?p=10182"},"modified":"2016-10-21T19:33:16","modified_gmt":"2016-10-21T23:33:16","slug":"bud-bullets-legal-marijuana-and-the-right-to-bear-arms","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/crcl\/bud-bullets-legal-marijuana-and-the-right-to-bear-arms\/","title":{"rendered":"Bud & Bullets: Legal Marijuana and the Right to Bear Arms"},"content":{"rendered":"

Marijuana and the Right to Bear Arms: Is It Time for a Change?<\/u><\/strong><\/p>\n

Photo Credit: Liberty Viral<\/figcaption><\/figure>\n

 <\/p>\n

This November, nine states will have marijuana initiatives<\/a> on their ballots. Five of these states\u2014Arizona, California, Maine, Massachusetts, and Nevada\u2014will be voting on marijuana legalization for recreational use. If these initiatives pass, that will make a total of nine states that allow recreational marijuana use. The remaining initiatives deal with medical marijuana\u2014which is already legal in nearly half of the country.<\/p>\n

 <\/p>\n

At the same time, in Wilson v. Lynch<\/a><\/u>, the Ninth Circuit recently ruled<\/a> that medical marijuana cardholders who are following state law are prohibited from purchasing firearms. Although prominent civil liberties groups like the American Civil Liberties Union<\/a> are hesitant to recognize the Second Amendment as an individual civil liberty, the current Supreme Court-position is that the Second Amendment is, in fact, an individual<\/a> civil liberty protected by the Constitution. While one can disagree with the Court\u2019s interpretation, it is the current law of the land.<\/p>\n

The court noted that federal law, 18 U.S.C. \u00a7 922(d)(3) and (g)(3)<\/a>, prohibits selling firearms to, and the possession of firearms by, anyone who is \u201can unlawful user of or addicted to [marijuana].\u201d Even though medical marijuana patients and recreational marijuana users are lawfully using marijuana in their state, it is still illegal under federal law. The court also pointed to a September 2011 guidance letter<\/a> from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to all Federal Firearms Licensees (FFLs) (those who are licensed to sell firearms retail) stating that there are no exceptions for those individuals in states that authorized marijuana use. Thus, FFLs are prohibited from selling firearms to someone reasonably believed to be a user of marijuana\u2014even if that person is legally allowed to use it under state law.<\/p>\n

The consequence are that patients who require medical marijuana to treat their conditions, or recreational users who are following state law, must make a choice: give up their right to purchase a firearm, not use a legal and ostensibly medically-beneficial substance, or lie on their background check forms<\/a> under the penalties of perjury.<\/p>\n

Given the upward trends and growing popular support<\/a> of legalization, the recognition of medicinal uses of marijuana, and the data on marijuana compared to other legal substances, the law should be changed to prevent forcing people to make these choices. At the very least, the recent guidance by the ATF should be rescinded and replaced making accommodations for those following state law until a more permanent resolution can be made.<\/p>\n

 <\/p>\n

Alcohol v. Marijuana and the Prevention of Gun Violence:<\/u><\/strong><\/p>\n

In Wilson v. Lynch<\/u>, the court stated that the purpose of \u00a7 922 is to prevent gun violence. \u201c[I]t is beyond dispute,\u201d the court opined, that marijuana use could lead to \u201cirrational or unpredictable behavior.\u201d Notably absent from \u00a7 922, however, is a prohibition on people who use, or are addicted to, alcohol. According to a 2003 study<\/a>, \u201calcohol use has the most direct evidence of an intoxication-violence relationship,\u201d but \u201c[c]annabis reduces [the] likelihood of violence during intoxication.\u201d The U.S. Department of Health and Human Services found<\/a>: \u201c[A]lcohol is more likely than other drugs to be involved in substance-related violence . . . Thus, despite the popular conception that violent crime is strongly linked to drug use by offenders . . . there is actually a much greater probability that any given violent incident will be related to alcohol use than to use of other drugs by the offender.\u201d Moreover, the British Advisory Council on the Misuse of Drugs concluded<\/a>, \u201cCannabis differs from alcohol, however, in one major respect: it seems not to increase risk-taking behaviour.\u201d They went on to state:<\/p>\n

Cannabis intoxication tends to produce relaxation and social withdrawal rather than the aggressive and disinhibited behaviour commonly found under the influence of alcohol. This means that cannabis rarely contributes to violence either to others or to oneself, whereas alcohol use is a major factor in deliberate self-harm, domestic accidents and violence.<\/p><\/blockquote>\n

Notwithstanding this research, federal law prohibits marijuana<\/em> users from possessing or purchasing firearms, yet there is no such prohibition for alcohol users<\/em>. Admittedly, some states<\/a> prohibit alcohol abusers, misdemeanants, or persons under the influence of alcohol form purchasing a firearm. But that emphasis\u2014on abusers\u2014is far from the full-stop ban on law-abiding, responsible recreational users that occurs with marijuana users. If the Department of Justice is okay with allowing people who drink alcohol to purchase and possess firearms, it seems irrational to prohibit marijuana users in states where marijuana is legal.<\/p>\n

 <\/p>\n

\u201cUnlawful\u201d Users?<\/strong><\/span><\/p>\n

The Department of Justice has stated<\/a> that individuals who comply with state laws are \u201cless likely\u201d to threaten the federal enforcement priorities. While marijuana users are, technically speaking, unlawful under federal law, if they are in a state that permits marijuana use, they are complying with the state\u2019s law and regulatory regime. Medical marijuana users, by definition, need to satisfy the requirements for a state license to obtain medical marijuana.<\/p>\n

To be sure, one of those priorities is the prevention of violence<\/u> and the \u201cuse<\/u><\/em> of firearms in the cultivation<\/u><\/em> and distribution<\/u><\/em> of marijuana\u201d (emphasis added). But, as noted before, the data suggests that marijuana use<\/u><\/em> is hardly a gateway to violence. Furthermore, owning a firearm for self-defense in the home, shooting sports, or hunting is not the same as using a firearm in the cultivation and distribution of marijuana. It would seem that the federal priorities are aimed at deterring violence among gangs and cartels rather than your average recreational or medicinal marijuana user. Thus, individuals who are legally permitted to use marijuana and complying with the state\u2019s law should not be per se<\/em> prohibited from purchasing or possessing a firearm.<\/p>\n

The previously mentioned federal priority also puts legal marijuana retail businesses at a disadvantage<\/a>. Since it is hard to find banks willing to work with them, due to federal regulations, these businesses deal primarily in cash. Thus, marijuana businesses are a prime target for thieves. Under the DOJ\u2019s guidance, it is questionable whether these businesses can hire armed security guards to protect themselves from armed robbers. While it is legally questionable, professional, armed marijuana security companies<\/a> have developed to fill this need. If a state has imposed a regulatory regime that allows armed security guards (who often have to undergo licensing and background checks<\/a>) to protect marijuana businesses, it seems like compliance with this regime should help prevent violence and presumably<\/em> the real concern of the federal priorities\u2014street-gang and cartel violence.<\/p>\n

Finally, the court in Wilson<\/u> also asserted that marijuana leads to \u201cnegative interactions with law enforcement\u201d because it involves \u201ccriminal activity,\u201d and that marijuana users \u201cfrequently make their purchases through black market sources who themselves frequently resort to violence.\u201d However, in a state where marijuana use is legal, users are, by definition, not engaged in criminal activity as far as their local law enforcement is concerned. And it is local <\/em>law enforcement that these users interact with regularly. Moreover, if medicinal or retail marijuana sales are permissible, users need not resort to the black market sources that \u201cfrequently resort to violence\u201d because they have legitimate and regulated sources to purchase from. Thus, these particular concerns about marijuana use\u2014especially in states where it is permitted\u2014make no sense.<\/p>\n

 <\/p>\n

Policy Recommendations<\/u><\/strong><\/p>\n

As a supporter of both legal marijuana use and firearm ownership, and in light of the information discussed above, I have a few recommendations for resolving these issues. In order of helpfulness, they are:<\/p>\n

    \n
  1. Remove marijuana from the Controlled Substance Act altogether and tax and regulate it like other legally regulated products (e.g., tobacco and alcohol), reschedule marijuana to recognize medicinal uses for marijuana, or amend \u00a7 922 to exclude marijuana users who are in compliance with state law requirements; or<\/li>\n
  2. The current ATF and DOJ guidance should be amended to make exceptions for individuals living in states where marijuana use has been permitted (for example, by interpreting \u201cunlawful users\u201d to exclude users who are NOT<\/em> unlawful under state law). Patients who are prescribed Xanax, a controlled substance, are not deemed unlawful\u2014patients who are prescribed marijuana, a controlled substance, should not be deemed unlawful either. Exceptions should also be made for permitting legal retail businesses to hire armed security guards in order to \u201cprevent violence\u201d like the federal priorities suggest; or<\/li>\n
  3. Restrict appropriations for enforcement of the relevant portions of \u00a7 922 in states where marijuana use is legal. See, e.g.<\/em>, United States v. McIntosh<\/a>, Nos. 15-10117, 15-10122, 15-10127, 15-10132, 15-10137, 15-30098, 15-71158, 15-71174, 15-71179, 15-71225, 2016 U.S. App. LEXIS 15029, *9 \u2013 10 (9th Cir. Aug. 16, 2016) (holding that the Department of Justice is prohibited under a congressional appropriations rider from prosecuting individuals who are engaged in conduct permitted by state medical marijuana laws and who fully comply with such laws).<\/li>\n<\/ol>\n

    These changes would make it possible for people to comply with their state\u2019s law and exercise rights granted to them by the state, while also being able to exercise their constitutional civil liberty to purchase and possess a firearm. If we are willing to allow recreational users of alcohol, and prescribed users of various controlled substances, to purchase and possess firearms, then it is irrational to prevent marijuana users from doing the same\u2014especially in states that have permitted and regulated the use of marijuana.<\/p>\n

     <\/p>\n

    (Background photo credit: Mary Millus\/Green Rush Daily<\/a>)<\/p>\n

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    Marijuana and the Right to Bear Arms: Is It Time for a Change?   This November, nine states will have 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