Cannabis and Firearms: The Choice Between Marijuana Use and Second Amendment Rights

In Part 1…

We were introduced to Kim Petters, a U.S. Air Force veteran who developed PTSD but found relief with Delaware’s medical marijuana program. Due to federal law 18 U.S.C. 922 (g), however, legal users of cannabis can not be legal owners of firearms. Petters, and others in similar situations, are faced with the difficult decision of choosing protection or pain relief. Dr. Corey Burchman, a Navy veteran in New York City, believes CBD can be used as an alternative to opioids, noting that owning a gun is allowed for users of other prescribed forms of pain relief.

In Part 2, we will dive into the complications of navigating state and federal laws. Learn about where lawmakers stand on the issue, the headway being made on marijuana sobriety tests and what to know when making the very personal decision to carry or medicate below.

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 |

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Federal Laws on Marijuana Use and Consumption

Despite the cut-in-stone nature of federal law with regard to marijuana, how that plays out in real life can vary dramatically depending on the jurisdiction, according to Wisconsin-based attorney Tom Grieve, who frequently appears in the U.S. Concealed Carry Association’s popular “Ask an Attorney” video series.

“When you’re watching my videos, you’ll hear me say ‘check your local listings, check your local listings,’” Grieve stated. “What I’m referring to is that these laws, at least on the state level, obviously change from place to place. And on the federal level, enforcement may also change from place to place.”

Despite the federal law being the same across the country, Grieve said, the way different law enforcement agencies react to the law is by no means identical. There is also variation in who is prosecuted and the outcomes of those prosecutions.

“Keep in mind that I neither practice in federal court nor am I licensed in Colorado,” he declared, “but I’ve heard from a variety of folks involved in the criminal justice system in Colorado that ever since [state-level legalization] the feds haven’t bothered going after virtually anything marijuana. That’s basically tied into the fact that if they don’t think they can get convictions, it isn’t worth their time.”

Cannabis State Laws

One jurisdiction that has taken a clear stance on marijuana and firearms is the Illinois State Police (ISP). Recreational marijuana became legal in the Land of Lincoln starting on Jan. 1, 2020. The ISP released the following statement nine days later:

The Illinois State Police will not revoke Firearm Owners Identification Cards based solely on a person’s legal use of cannabis. Pursuant to both state and federal law, a person who is addicted to or a habitual user of narcotics is not permitted to possess or use firearms. Accordingly, the ISP will revoke FOID cards where it is demonstrated that an individual is addicted to or is a habitual user of cannabis. The ISP would also revoke or deny the FOID cards of those who violate certain provisions of the Cannabis Regulations and Tax Act.

Spokesperson Christopher Watson said the decision was made by ISP Command staff through conversation with Gov. J.B. Pritzker’s administration, legislators and experts in the field.

“We drew from outside resources, such as Colorado and other states which have passed recreational and medicinal cannabis legislation,” he stated. “We balanced our decision-making process with current state and federal constitutional law, the passing of Illinois’ recreational and medicinal cannabis laws, and national and state laws concerning gun ownership in a way that maximized everyone’s desire for public safety.”

Along the same lines is the office of Mike Stuart, U.S. Attorney for the Southern District of West Virginia. He recently told Charleston, West Virginia, TV station WOWK that “in a state like West Virginia, where everybody, for the most part, has firearms in their homes, you’re going to be able to pick firearms, or you’re going to pick your medical marijuana card, but you can’t pick both.”

There is a criminal element that’s always going to be attached to this.

Stuart declined to be interviewed, but Mike Pushkin was happy to share his views. The Democratic member of the West Virginia House of Delegates has represented his district since 2014.

“I think that Mike Stuart has really been an anomaly as far as the Department of Justice has gone,” Pushkin declared. “He’s using his public office as the U.S. Attorney to press his own personal views. He’s always been very anti-cannabis. And while, yes, on the federal level, cannabis is still treated like a Schedule I non-narcotic, I don’t think anybody really thinks it should be on the par of other Schedule I drugs.”

Pushkin went on to say that there are many laws on the books, but it’s up to a federal prosecutor to use his or her best discretion as to where he or she wants to focus his or her efforts. And he thinks that public funds in West Virginia’s Southern District could be better spent.

Legal Complication of Gun Ownership and Marijuana Use

While the NRA declined to go on the record, GOA’s Pratt has given consideration to the issue of cannabis users being stripped of their Second Amendment rights. His organization boasts a membership of two million people and works to influence the courts and legislatures with regard to what he calls our “God-given right of self-defense.”

“The analogy has been made to alcohol,” he said. “We wouldn’t encourage people to carry while they’re drinking. But nobody should be denied the right to carry simply because they own alcohol. Or they drink in their home. That’s the established standard that we have. And we would say that the same standard should be applied to cannabis.”

GOA Texas Director Rachel Malone said that she’s not personally involved, as marijuana prohibition is at the federal level and she focuses on state legislation. She does, however, worry about military veterans who are forced to make difficult choices.

“I’ve seen the consequences of laws as they’re currently enforced,” she reported. “I’ve seen the consequences of people not being able to defend themselves.”

Malone brought up the example of Joshua Raines, who presented alongside her at the 2019 Texas Marijuana Policy Conference. For years, Raines has illegally used marijuana to treat the epilepsy and PTSD he developed during his five years in the U.S. Army, conditions he developed after a brain injury suffered during an explosion in Afghanistan.

Raines has been eligible for a legal prescription of medical marijuana since 2015, when Texas lawmakers approved the Compassionate Use Program for patients with intractable epilepsy. But he has resisted seeking out a prescription because doing so would mean giving up the right to purchase a firearm.

I don’t see a crime when somebody chooses to use marijuana.

“Why am I going to give up one of my rights because I found an organic plant that some are uncomfortable with?” he told the Dallas Morning News in 2019. “I’m not going to do that. I’m not going to trade my rights like baseball cards.”

Marijuana Sobriety Tests

The current mismatches in state and federal law have created some interesting opportunities for entrepreneurship, namely the rise of armed guard services specializing in the cannabis industry. Many growers and purveyors are also users who eschew handling firearms to stay in compliance with the law. So they outsource their protection.

Grant Whitus saw an opportunity after 27 years in law enforcement, including being a part of the Jefferson County SWAT team that first entered Columbine High School after the 1999 attack in the Denver suburb. After a brief stint with another company, he joined up with Colorado-based Helix Cannabis Security, which was recently bought by Invicta Group Security. Whitus currently serves as president. (The firm also does business in California.)

“In Colorado, we’re about 95 percent [ex-]military,” Whitus said. “And we certainly have some ex-law enforcement officers also. And the model’s been working very well. And I’m happy to say we work in the industry and employ these young military men and women.”

The guards use handguns, not rifles. Invicta provides a list of allowable weapons and supplies ammunition in 9mm, .40 S&W and .45 ACP. However, he made it clear that the firm is in the business of protecting people, not products.

“We have no intention of being involved in a firefight over cannabis,” he added. “That’s not why we’re in this. We are in this to protect people in the cannabis industry.”

Whitus said that the Denver Metro Area recently suffered a rash of armed robberies — a spree that went on for close to two months — but that the criminals mostly avoided guarded locations.

“These people are smart enough to know,” Whitus stated. “Why pick a place with an armed guard when you can go down the street and find a cannabis location that doesn’t have one? There is a criminal element that’s always going to be attached to this. And I think growers, sellers and owners need to be prepared for that and protect their people.”

And then there is the quest for accurate field sobriety testing. Unlike alcohol, which is quickly metabolized by the liver, THC, the psychoactive agent in marijuana, is extremely fat-soluble and can linger in the system for weeks after last use. In states where marijuana has been legalized, such as Colorado, law enforcement officers need to be able to determine whether a driver is too impaired to operate a vehicle, not just that said driver has recently used.

“There’s a race for manufacturing preliminary breath tests, otherwise known as breathalyzers, and other ways of monitoring without dipping into blood tests,” Grieve declared. “What’s the concentration of this? What’s the concentration of that?”

Two front-runners in the race to develop such technology are California-based Hound Labs and the Canadian firm Cannabix Technologies. Both are developing small hand-held devices with tubes that people blow into, similar to the field sobriety tests used to test for alcohol.

Seeking Fixes: Marijuana Use as a Crime

If you’re confused by all of this, you’re in good company. Even our nation’s top lawmakers have found themselves flummoxed by the current legal landscape of marijuana.

U.S. Sen. Lisa Murkowski recounted a story to the Wall Street Journal where the Alaska Republican tried to pick up a shotgun for her husband. She was taken aback by the questions posed by Form 4473.

“I don’t like marijuana — I voted against legalization — but we passed it,” she told the newspaper in 2016. “Now, you’ve got this conflict.”

U.S. Rep. Thomas Massie, a Republican politician who has served Kentucky’s 4th Congressional District since 2012, believes that the way the laws are currently set up has created criminals out of otherwise law-abiding citizens.

“I believe in the rule of law,” he stated, “and we have a situation now where there are millions of felons in this country. And to ignore a law is to delegitimize all the rest of the laws in this country. So I think our laws need to reflect reality, and we really need to catch up with the rest of society.”

Massie said that he’s polled the general population in his district and that three-quarters of Republicans and three-quarters of Democrats would prefer for the states to decide on the issue of legalization instead of the federal government. And if it were up to him, he’d prefer the decision to be up to the Kentucky Legislature.

“I am very skeptical of victimless crimes,” Massie said of his position. “And I don’t see a crime when somebody chooses to use marijuana.”

With regards to firearms and cannabis, one thing that gives him cause for concern is the government database of prohibited persons — particularly the changes made by the Fix NICS Act of 2017.

“The whole idea behind Fix NICS was to make sure that everything the courts know gets transferred into the next database with respect to who are prohibited users,” Massie stated. “Well, even in a state where they just write you a ticket for marijuana use or possession, now they’ve got a record of that, which is a disqualifier for owning a firearm.”

He also said that he’s concerned that the changes made by the act will incentivize states to turn over lists of marijuana card holders. He pointed out that it provides money and incentives for state governments and federal agencies to submit more names to the prohibited database.

“I would hope they would want to fix this instead of creating or keeping millions of unindicted felons in our nation,” Massie declared.

The Choice Between Firearms Ownership and Marijuana

As for Kim Petters back in Delaware, she reported her harrowing incident to the authorities. And it later came out that the armed couple was in a dispute with her friend, the head-shop owner. She and her friends were simply in the wrong place at the wrong time.

Knowing this was cold comfort, however. After surrendering her medical marijuana card to the state, she went out the very next day and purchased a handgun. She began training shortly after and hopes to obtain her Delaware Concealed Deadly Weapon License before long.

“I never imagined anything like this happening in my entire life,” she stated. “But it did. And I was forced to give up the medicine that works best for me in order to be able to exercise my Second Amendment rights.”

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Editor’s Note: 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.

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 |