Medical Marijuana and gun useCommon sense tells us that alcohol and guns should not be mixed.  The same goes for illegal drugs and guns.  But what about prescription drugs and guns?  Or more relevant to current events—what about prescription medical marijuana and guns?  Without looking into the wisdom, or lack thereof, of mixing medical marijuana usage with firearm possession and usage, this article examines whether medical marijuana users can legally possess firearms.

Arizona Medical Marijuana – In November 2010, Arizona voters narrowly passed the Arizona Medical Marijuana Act legalizing medical marijuana and the cultivation and use of it for debilitating medical conditions.  The citizen initiative, known at the time as proposition 203, called on the Arizona Department of Health Services to create a medical marijuana program within 120 days from the official election results.  The measure passed by the narrowest of margins—a mere 4,340 votes out of 1,678,356 total.  Interestingly, 12 out of 15 Arizona counties voted against the proposition, leaving only three counties voting in favor of the measure: Coconino, Pima, and Santa Cruz counties.  Pima County had the highest “yes” vote in the state at a paltry 57%, yet the percentage was enough to tip the scales in favor of legalizing marijuana for medical uses.  With the passage of the law, the Arizona Department of Health Services (the “Department”) went to work on designing the program, receiving public comments, and drafting the operational rules.  The first dispensary opened and began dispensing medical marijuana on December 5, 2012.  Qualifying Patients who wish to use marijuana for medical purposes must visit licensed physicians who are supposed to make or confirm diagnosis of a debilitating medical condition, which includes the following:[1]

  • Cancer
  • Glaucoma
  • Hepatitis C
  • Amyotrophic Lateral Sclerosis (ALS)
  • Crohn’s Disease
  • Agitation of Alzheimer’s disease
  • Chronic or debilitating disease or medical condition that causes
    • Cachexia or wasting syndrome
    • Severe and chronic pain
    • Severe nausea
    • Seizures
    • Severe or Persistent Muscle Spasms
    • A debilitating medical condition or treatment approved by the Department under ARS 36-2801.01 and A.A.C. R9-17-106

The physician, if he or she wishes to prescribe marijuana for one of the above medical conditions, then certifies in writing his or her diagnosis using the statutory form.[2]  The patient then submits an application to the Department to obtain a registry identification card which permits them to purchase at approved medical marijuana dispensaries.

Federal Marijuana Laws – Marijuana is still illegal federally, regardless of its status under state law.  Marijuana, and its cannabinoids,[3] is still 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 Arizona state law.[4]  That means that growing, distributing, and possessing marijuana in any capacity, other than as part of a federally authorized research program, is a violation of federal law regardless of state laws that purport to permit such activities.[5]

As you can see, there is a conflict between Arizona law and federal law.  Under the Supremacy clause of the United States Constitution, it is likely that if the federal government wanted to invalidate state laws they probably could,[6] however, that topic is a discussion well beyond the scope of this article.[7]  Additionally, the federal government could arrest and prosecute everyone involved in the growing, distributing, and possessing marijuana in Arizona for violating federal law if they so choose.  However, as of now, the federal government, via the United States Attorney for the District of Arizona has chosen not to do so:

An October, 2009, memorandum from then-Deputy Attorney General Ogden provided guidance that, in districts where a state had enacted medical marijuana programs, USAOs (United States Attorney’s Offices) ought not to focus their limited resources on those seriously ill individuals who use marijuana as part of a medically recommended treatment regimen and are in clear and unambiguous compliance with such state laws.  And, as has been our policy, this USAO will continue to follow that guidance.  The public should understand, however, that even clear and unambiguous compliance with AMMA (the Arizona Medical Marijuana Act) does not render possession or distribution of marijuana lawful under federal statute.[8]

As is clear in that letter, the US Attorney for the district of Arizona is essentially ‘looking the other way’ when it comes to medical marijuana and allowing it to occur even though it violates federal law.

Medical Marijuana and Guns – How then does Medical Marijuana relate to gun ownership and acquisition?  When a person purchases a firearm from a dealer (“Federal Firearm Licensee” or “FFL”), the buyer is required to complete ATF Form 4473—the Firearms Transaction Record.[9]  Question 11(e) of the form asks “are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?”  The person is required to check “yes” or “no.”  A light bulb should light up in your head at this point.  Because marijuana, even if legal in the state of Arizona, is illegal under federal law, a gun buyer who uses medical marijuana is required to answer this question as a “yes.”  At that point, the FFL cannot complete the sale legally.[10]  Likewise, the marijuana-using buyer is prohibited from completing the purchase of the firearm.[11]  Not only that, the user of medical marijuana cannot possess any firearms or ammunition according to federal law.[12]  This fact has been clearly reinforced by the BATFE, which directed in an open letter to all FFLs:

Federal law…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 or of 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 reasonable 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 medical marijuana card authorizing the possession and use of it 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 Form4473.[13]

It should be clear now that a user of medical marijuana is prohibited under federal law from purchasing or possessing any firearms or ammunition.  Interestingly, because of the inference of use mentioned in the letter quoted above, a person who is merely in possession of a medical marijuana registry identification card, but has not actually used marijuana, can still legally possess guns and ammunition but may prohibited from purchasing new ones.  Surely that scenario would be rare.

The Arizona medical marijuana laws may make medicinal marijuana legal in that state, but it is still illegal under federal law. As a result, users of medical marijuana are prohibited from purchasing or possessing firearms and ammunition under federal law, even if they are otherwise able to legally own guns and ammunition.  Owners of firearms should think long and hard before they apply to use medical marijuana.  It is clear that medical marijuana and guns do not mix.

If you would like to talk about your specific scenario, please do not hesitate to contact me at 480-344-4597.

[1] ARS 36-2801(3)


[3] 21 U.S.C. 802, 812(c); 21 C.F.R. 1308.11

[4] Letter from Arthur Herbert, Assistant Director, Enforcement Programs and Services, Bureau of Alcohol, Tobacco, Firearms and Explosives, to All Federal Firearms Licensees (September 21, 2011) (on file with the BATFE).

[5] Letter from Dennis K. Burke, US Attorney, District of Arizona, to Will Humble, director, Arizona Department of Health Services (May 2, 2011) (on file with the Arizona Department of Health Services).  See also Letter from David Ogden, Deputy Attorney General, United States Department of Justice, to All United States Attorneys (October 19, 2009) (on file with the Department of Justice).

[6] U.C. Const. art. VI, cl. 2.

[7] See Robert Mikos, Preemption Under the Controlled Substances Act, 16 Vand. J. Health Care L. & Pol’y 101 (2013).

[8] See Supra Note 5.

[9] U.S. Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives, OMB No. 1140-0020, Firearms Transaction Record Part 1- Over-the- Counter (2012).

[10] 18 U.S.C. § 922(d)(3) (it shall be 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 any controlled substance (as defined in section 102 of the Controlled Substances Act [21 U.S.C. 802]).

[11] 18 U.S.C. § 922(g)(3) which says “It shall be unlawful for 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])…to possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce” (emphasis added).

[12] Id. (emphasis added).

[13] Id. Supra Letter from Arthur Herbert (emphasis added).