Editor’s Note: This is Part 1 of a series on cannabis and firearms originally appearing in the January 2021 issue of Concealed Carry Magazine. The U.S. Concealed Carry Association and Concealed Carry Magazine have no editorial stance on marijuana legalization or the medicinal benefits of cannabis. The aim of this series is nothing more than to examine the legal concerns and ramifications that firearms owners who are also medical cannabis users face as states across the country continue to legalize marijuana while the drug remains a controlled substance under federal law.
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Cannabis and Firearms Series
Cannabis and Firearms: Medical Marijuana | Cannabis and Firearms: Federal vs. State Laws | Cannabis and Firearms: Profile — Kim Petters | Cannabis and Firearms: Profile — Brian | Cannabis and Firearms: Profile — Pearson Crosby |
It was a beautiful spring day on Loockerman Street in downtown Dover, Delaware. The setting was reminiscent of the fictional Stars Hollow from the popular TV show Gilmore Girls, according to Kim Petters. The 39-year-old mother of four sat on a bench in front of her friend’s head shop, catching up with four other friends. What with COVID-19, it had been some time since they had gotten together. Petters was in a good place mentally, which wasn’t the situation when she first came to the Diamond State after 10 years of active duty in the U.S. Air Force. She was medically retired after developing post-traumatic stress disorder (PTSD) from working with the human remains mission. Anxiety and insomnia were constant companions.
Petters was desperate for relief when she first found out that Delaware had a medical marijuana program and that PTSD was a qualifying condition. Her conservative nature gave her pause. Marijuana? Pot? That was doing drugs, right?
“But I was desperate because the anxiety was still there, even while taking all these medications,” Petters explained. “And I’d heard that cannabis can work for people. And so I tried it. And that very first time I tried it, I immediately felt relief.”
Her relief was so profound that, within a few weeks, she stopped taking her anxiety medication. Then she was able to go off of her sleep medication. And before long, she was off of prescription medication entirely.
Gun Ownership and Prohibited Persons
Back on Loockerman Street, despite the chirping birds and bucolic setting, trouble was brewing. The date was May 31, 2020. A week earlier, George Floyd was arrested in Minneapolis for allegedly passing counterfeit bills and died in police custody. The incident touched off a summer of unrest across the country. At first, Petters was hesitant to go downtown that day. Rioters had already broken into a local mall. But Sam Chick, the owner of the head shop, assured her that the protesters he’d encountered had been peaceful.
I mean, what a dilemma. Am I going to live pain-free but defenseless? Or in pain but able to protect myself and my family?
“There was no one else on the street,” Petters recalled. “And out of nowhere, two people rolled up. They were masked. They were dressed in all black. They just looked like they were ready to go into combat.”
The pair — a man and a woman — were armed with AR-15 rifles and positioned themselves directly across the street. They said nothing to Petters and her friends.
“At first, I wasn’t really put off by it because we’re an open carry state and I love guns,” Petters said. “I was like, ‘OK, cool,’ and I walked across the street to talk to them.”
Still remaining silent, the woman standing on the other side of the street brought up the muzzle of her rifle to cover the ground immediately in front of Petters while her companion raised his hand as if to say “halt.” It was evident that they were “unfriendlies.” Petters immediately crossed back to her side of the street, where her friends were frozen on the bench. She feared for her life, and she was helpless to defend herself because she had been stripped of her Second Amendment rights. As a user of marijuana, Petters was a “prohibited person” for firearms under federal law. She was unable to legally purchase or possess — much less carry — a firearm.
ATF Form 4473, the legal federal document a purchaser must fill out when buying a firearm through an FFL dealer.
Legal Qualifications for Firearms Possession and Marijuana Limitations
While the United States has a long and complicated history with cannabis prohibition, the current legal landscape largely began with the passage of the Controlled Substances Act of 1970. And before going any further, it’s helpful to remember that the U.S. Department of Justice oversees the ATF, which regulates gun dealers; the FBI, which runs background checks; and the DEA, which classifies drugs.
The legislation created five schedules, or classifications, with varying qualifications for a substance to be included in each. Marijuana (cannabis) was placed in Schedule I, meaning it had “no currently accepted medical use in the United States” and had a “high potential for abuse.” This, in turn, informs U.S. Code.[i] According to federal law 18 U.S.C. § 922 (g)(3), “No person may ship or transport any firearm or ammunition in interstate or foreign commerce, or receive any firearm or ammunition in or affecting commerce” who “is an unlawful user or addicted to any controlled substance” (as defined in Section 102 of the Controlled Substances Act, 21 U.S.C.). Likewise, it’s a federal crime to sell a gun or give a gun to someone suspected of being a user of controlled substances.
And marijuana users cannot purchase firearms through FFL dealers without risking felony charges. ATF Form 4473, Question 21E, currently reads: “Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug or any other controlled substance? Warning: The use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medicinal or recreational purposes in the state where you reside.”
Firearms Purchase Forms and Cannabis Exclusion
The form, required for purchase of a firearm through any FFL dealer, leaves marijuana users with three choices:
1. Do not buy a gun through an FFL dealer;
2. Answer honestly, which would void the sale; or
3. Lie.
Tempting as the third option might be, providing false or misleading answers on a federal form could lead to felony charges. Writing false statements on Form 4473 is a crime punishable by up to 10 years in prison and up to a $250,000 fine, according to the U.S. Government Accountability Office. Violators may take comfort in the knowledge that such prosecutions are rare. According to a Washington Post review of 112,000 federal gun-purchase denials due to applicants falling into “forbidden categories” in 2017, the ATF investigated 12,700 and prosecuted just 12.[ii] However, there’s always the risk that a gun owner could be involved in a shooting. If the police go through his or her wallet following the shooting and locate a medical cannabis card, they could pull that person’s Form 4473 and charge him or her with a felony crime for lying on the form. While Gun Owners of America (GOA) has no official stance on marijuana legalization, GOA Senior Vice President Erich Pratt is well aware of the consternation the current legislation causes for many.
“I mean, what a dilemma,” he stated. “Am I going to live pain-free but defenseless? Or in pain but able to protect myself and my family? Man, that’s not a choice that anyone should have to make.”
Legalizing Marijuana Use: States Law vs. Federal Law
As of the writing of this piece, 35 states have legalized medical marijuana. Fifteen states and Washington, D.C., have legalized marijuana for recreational use for adults over 21. This “green wave” reflects the changing sentiments of the public. According to a 2019 Pew Research Center poll, 67 percent of Americans think marijuana should be legal, and 91 percent support making medical marijuana legal.[iii]
“This history is what makes marijuana unique,” wrote Emily Dufton in her book Grass Roots: The Rise and Fall of Marijuana in America (2017). “Unlike cocaine and LSD, only marijuana has had the distinct ability to move back and forth at the state and local levels — between legality, illegality, acceptance and condemnation — while always remaining federally illegal.”
When asked to be interviewed about its reasoning for keeping marijuana on Schedule I, DEA spokesperson Michael Miller declined and simply emailed a link to a decision published in the Federal Register in August 2016, basically stating that, despite state-level legalization, the agency is standing firm. Likewise, when asked about the ATF’s justification for maintaining marijuana as a Schedule I drug, spokesperson Cara Herman also declined to be interviewed and responded with a short email pointing out that the Controlled Substances Act is still the law of the land.
LIFE-ALTERING CHOICES – Medical cannabis helped Kim Petters (pictured above, far right) find relief in her struggles with PTSD, but that solution also put the passionate firearms-rights advocate’s ability to legally own, buy and carry firearms in jeopardy.
Health Benefits of Cannabis?
Natural questions non-users might ask are: “What’s the appeal of marijuana?” “Has science proven the efficacy of medical marijuana?” “What are the benefits of recreational use?” “Why are proponents of marijuana so passionate about their cause?”
With regard to medical marijuana, Dr. Corey Burchman is an advocate with some impressive credentials to his name. Formerly an assistant professor of anesthesia and Critical Care Medicine at Dartmouth-Hitchcock Medical Center, the 63-year-old U.S. Navy veteran is now the chief medical officer with Acreage Holdings, a New York City-based cannabis venture. Before his academic career, however, Burchman was in private practice in Pennsylvania for 14 years. Pain management was his domain of expertise. At the time, opioids were heavily prescribed for chronic pain, such as the pain associated with cancer.
“I had patients taking cannabis,” he said, “and I could see that they were self-regulating and reducing their opioid consumption. And there was not a huge amount of data on this. But there was enough for me to sort of do a deep dive into it and understand the interactions. Particularly THC, which is the psychoactive component.”
Burchman made it clear that he wasn’t a “weed doctor,” but he did begin recommending it to patients before marijuana was formally medicalized.
“I would say the No. 1 reason that medical patients turn to cannabis is for pain control,” Burchman added. “There are very well-run studies — double-blind, placebo-controlled studies — that show cannabis to have a very strong analgesic quality. Maybe not on par with opioids, but it depends on the patient.”
But this is America and people have freedom.
Effects of Cannabis Data
In addition to pain control, medical marijuana can be effective in treating intractable nausea and vomiting, he said. And CBD has an anti-inflammatory component that’s useful in treating autoimmune diseases, like rheumatoid arthritis and Crohn’s disease.
“There’s data — it’s not great, but it’s useful — about PTSD,” Burchman noted. “PTSD includes insomnia, nightmares and fears that occur after traumatic events. There’s one small, clinical study which shows cannabis doesn’t necessarily help. But there’s lots of anecdotal data. And more clinical studies need to be done.”
When asked what he thought about marijuana users being stripped of their Second Amendment rights, Burchman said that, while he’s a gun owner, he didn’t feel qualified to opine about the issue. He did, however, provide a few remarks on the subject.
“I mean, if you’re using cannabis as medicine, certainly there are many medications that can cause changes in one’s judgment and psychoactive ability,” he stated. “Looking just at alcohol and opioids and other mood-elevating substances that are legal, it’s a bit incredulous to me that cannabis is singled out as being an impediment.”
On the recreational side of things, few people are as qualified to weigh in as Chick, owner of the Dover, Delaware, head shop named Puffster, and an enthusiastic advocate of state-level marijuana reform.
“Let me start off by saying I’m not advocating for drug use,” Chick declared. “But this is America and people have freedom. If you have a long, hard day at work? You come home and you smoke a joint to relax and wind down and take your mind off the day’s worries.”
Chick, a former infantryman in the U.S. Army, said that alcohol abuse is a serious issue for many veterans. And that’s why he considers it mind-blowing that marijuana is illegal.
“It relaxes you, makes you laugh,” he explained. “It’s just a benign thing.”
Endnotes
[i] On Dec. 4, 2020, the U.S. House of Representatives passed a bill to decriminalize marijuana and tax marijuana sales at the federal level. If approved by the Senate, marijuana would no longer fall under the Controlled Substances Act, so states would be able to make their own regulations on the use and sale of marijuana without contradicting federal law. However, political experts believe the bill has very little chance of passing in the Senate.
[ii] Joe Davidson, “Lying to buy a gun? Don’t worry about the feds,” The Washington Post, Sept. 11, 2018, https://www.washingtonpost.com/politics/2018/09/11/lying-buy-gun-fear-not-feds/.
[iii] Andrew Daniller, “Two-thirds of Americans support marijuana legalization,” Pew Research Center, Nov. 14, 2019, https://www.pewresearch.org/fact-tank/2019/11/14/americans-support-marijuana-legalization/.
Cannabis and Firearms Series
Cannabis and Firearms: Medical Marijuana | Cannabis and Firearms: Federal vs. State Laws | Cannabis and Firearms: Profile — Kim Petters | Cannabis and Firearms: Profile — Brian | Cannabis and Firearms: Profile — Pearson Crosby |
