The increasing legality of marijuana in various states has brought to light a significant legal conflict between state marijuana laws and federal firearms regulations. This conflict poses serious implications for gun owners who use marijuana. It is crucial to understand this complex legal landscape to navigate the rights and restrictions associated with marijuana use and firearm ownership effectively.
Federal Laws on Marijuana and Firearms
An increasing number of states are adopting more permissive laws regarding cannabis use. As of 2024, 24 states and Washington, D.C. have legalized recreational marijuana use, and 38 states allow consumption for medical relief for everything from glaucoma to anxiety and, of course, loss of appetite. 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.[1] However, with the continued federal prohibition, state-by-state legalization has led to a patchwork of laws and led to complexities for gun owners.
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.[2]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.).
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.”
Marijuana Use and Buying a Gun
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.”
The form, required for the purchase of a firearm through any FFL dealer, leaves marijuana users with three choices:
- Do not buy a gun through an FFL dealer;
- Answer honestly, which would void the sale; or
- 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.[3] 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.”
State Laws: Marijuana and Gun Rights
States that have legalized marijuana, whether for medical or recreational use, have their own set of regulations that often conflict with federal laws. 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.
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.”
Balancing Cannabis Legalization and Firearm Rights
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.”
Weed Sobriety Tests
No matter your stance on the “legalize it” debate, handling or carrying a firearm while under the influence is a terrible idea. But what if you smoked a joint and 10 days later found yourself in a legitimate self-defense situation? The physical effects of the marijuana would have worn off, likely not clouding your judgment. However, a zealous prosecutor could order a drug test. 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. Hair tests can detect it for up to three months!
The prosecution could argue that you, an “unlawful user of a controlled substance,” were illegally in possession of the firearm used in the incident. And if you purchased that gun through a federally licensed dealer within the 90-day hair test window, it could also indicate that you lied on a federal document.
There is also the quest for accurate field sobriety testing. 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.
Concealed Carry and Medical Marijuana
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.”
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.”
Balancing Health and Rights: Cannabis and Firearms

Kim Petters, veteran, prior medical marijuana user and concealed carry supporter trains with her handgun on an outdoor range.
Kim Petters, a U.S. Air Force veteran was medically retired in 2012 as a result of her PTSD. The transition back to civilian life was already rocky, and then her husband’s brother and sister-in-law died within three months of each other, leaving behind two young children and no life insurance. Petters and her husband took responsibility for the two children — in addition to their own — and moved to Delaware to be closer to family in New Jersey.
When she came across a video of veterans describing how marijuana had helped them, Petters decided to give it a try. She immediately felt relief from all her worries. Everything that had been on her mind was gone. She was in the present moment. She just felt happy, even if she couldn’t explain why. Within months, she was completely off her medications.
Emboldened by her experience, Petters worked with Delaware lawmakers to pass S.B. 24, which improved veterans’ and other PTSD sufferers’ access to medical marijuana. She then championed S.B. 79, which, had it passed, would have clarified existing law so as to not disqualify patients under the Delaware Medical Marijuana Act from possessing or purchasing firearms. Even though it wouldn’t have changed federal law, Petters said it would have sent a message to the federal government.
Following a run-in with an armed couple while out with some friends, she surrendered her medical marijuana card to the state and purchased a handgun the next day.
“I never imagined anything like this happening in my entire life,” Petters 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.”
Veteran’s Journey: From Combat to Cannabis Advocate
Pearson Crosby, a veteran and medical marijuana patient, found himself navigating the complex legal landscape of cannabis use and firearm ownership. Crosby completed two combat deployments before leaving active duty in 2008 at the end of his contract.
He returned home to Philadelphia. “Once I got out,” he remembered, “just everything locked up. I guess from not being active on a daily basis. I mean, it was to the point where I was crawling up the stairs to go to bed at night.”
The VA rated his disability at 70 percent, then 90. His doctors placed him on as many as 10 different prescription medications, including morphine, fentanyl and oxycodone. Before long, Crosby found himself hopelessly addicted.
Not knowing what else to do, he essentially locked himself into his apartment for a month with nothing but marijuana and Imodium A-D to get him through the worst of the withdrawal. And it worked.
“It’s been a life-changer for me,” Crosby shared, emphasizing how cannabis has helped him regain some normalcy in his life.
He became an outspoken cannabis advocate, helping launch the Veterans Action Council and even appearing on the cover of High Times Magazine (in his Marine Corps uniform with a joint in his mouth).

Crosby appeared on the cover of “High Times” magazine.
Despite the benefits of medical marijuana, Crosby faced significant legal challenges due to the federal prohibition of marijuana, which classifies users as prohibited persons from owning firearms. This legal discrepancy between state and federal laws put Crosby in a precarious situation.
“I’m a law-abiding citizen in every other respect, but because I use cannabis for my health, I’m treated like a criminal when it comes to my Second Amendment rights.”
Key Legal Cases Shaping Cannabis and Second Amendment Rights
When it comes to legal precedent involving the intersection of cannabis and Second Amendment rights, the pickings are slim. That said, there have been a handful of cases over the past decade that speak to the issue. And before delving into them, it’s useful to remember the ATF open letter sent to all federal firearms licensees in September 2011. That letter provided regulatory guidance as to the intent of 18 U.S.C 922(g)(3) and its interaction with state laws that legalize marijuana, pointing out that:
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 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.[4]
The letter then reminded FFLs that the Controlled Substances Act lists marijuana as a Schedule I controlled substance and that there are no exceptions in federal law for medicinal purposes, even if such use is sanctioned by state law. In summary, cannabis users are still prohibited persons in the eyes of the federal government.
The Obama-era Department of Justice largely remained quiet on the matter until the August 2013 “Cole Memorandum.” The memorandum, sent to all United States Attorneys, was written by United States Deputy Attorney General James M. Cole. It stated that, given its limited resources, the DOJ would not enforce federal marijuana prohibition in states that legalized medical or other uses of marijuana.
The next meaningful development came in 2016 with Wilson v. Lynch, in which the United States Court of Appeals for the Ninth Circuit held that federal law prohibits registered medical marijuana users from legally purchasing firearms. S. Rowan Wilson, the plaintiff, attempted to purchase a gun in her home state of Nevada. Wilson contacted a firearms dealer who refused to sell to her because she held a medical marijuana card. She then brought a lawsuit in federal court against then-Attorney General Loretta Lynch.
Wilson challenged federal statute 18 U.S.C 922 (g)(3) in addition to ATF regulations. The court, however, upheld the statute, determining that she lacked standing to challenge the law. Because Wilson alleged that she was not a marijuana user despite being a cardholder, and since she did not actually own a firearm, the court determined that the federal law preventing unlawful drug users from possessing firearms did not injure her and thus she could not challenge it.
The court acknowledged that Wilson’s right to bear arms under the Second Amendment had been infringed to some extent. But Judge Jed Rakoff said in a 30-page opinion that the government had a “substantial interest” in preventing gun violence by seeking to prevent drug users from possessing firearms and that it was reasonable to assume someone with a medical marijuana card would use the drug.
Two years later, in 2018, then-Attorney General Jeff Sessions rescinded the Cole Memorandum and other Obama-era guidance with his “Sessions Memorandum.” The one-page memo dictates that federal prosecutors should follow the principles of federal prosecution originally set forth in 1980 and subsequently refined over time in Chapter 9-27.000 of the U.S. Attorney’s Manual.
Supreme Court Precedents: Firearm Possession Laws
Even though it doesn’t involve marijuana, Dallas-based attorney Dan Clancy thinks the 2019 Supreme Court case Rehaif v. United States casts an oblique light on the issue of legal cannabis and Second Amendment rights.
Hamid Mohamed Ahmed Ali Rehaif is a citizen of the United Arab Emirates who was admitted to the United States on an F-1 visa. His visa was revoked in February 2015, though he remained in the country. He was investigated by the FBI for suspicious activity and charged with possessing a gun while unlawfully in the United States, in violation of 18 U.S.C. 922 (g)(5)(A).
Rehaif was tried and convicted in the United States District Court for the Middle District of Florida, and in January 2019 the Supreme Court agreed to hear his case. His conviction was reversed in a 7-2 vote based largely on the legal concept of mens rea, or “criminal intent” in layman’s terms.
“Rehaif was an interesting case,” Clancy indicated. “What it stood for was that the government, if they’re going to pursue a case against somebody for possession of a firearm by a felon, they have to prove up a culpable mental state that suggests beyond a reasonable doubt that the individual knew they were a felon.” While the case didn’t involve cannabis, Clancy said it speaks to what the government has to prove if it’s going to seek conviction under these statutes.
The Future of Cannabis and Firearm Legislation
On the national scene, U.S. Rep. Alex Mooney (R-WV) introduced the Second Amendment Protection Act in April 2019. The legislation, if passed, would amend federal law so that people using cannabis for medical purposes in compliance with state policies would be exempt from firearms and ammunition prohibitions.
While the Second Amendment Protection Act has yet to go anywhere, the Marijuana Opportunity Reinvestment and Expungement (MORE) Act of 2019 made headlines when it passed the House in December 2020. The MORE Act would effectively legalize cannabis by removing it from the Controlled Substances Act. It would also create shared federal-state control of cannabis programs, though it would not force states to legalize. While historic, the bill has little chance of becoming law, according to political analysts and other onlookers.
Until the day that cannabis is legalized on a federal level and removed from the DEA’s schedule of controlled substances, there is no magical loophole. As a responsibly armed American, it is up to you to decide if using marijuana in any capacity is worth sacrificing your legal right to bear arms.
This article is a compilation of several Concealed Carry Magazine articles written by Dorsey Kindler. To read the full enterprise series in the January through April 2021 issues, log into your USCCA Member site. You can subscribe to the magazine here.
Endnotes
[1] 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/.
[2] 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.
[3] 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/.
[4] Arthur Herbert, Assistant Director Enforcement Programs and Services, “Open Letter to All Federal Firearms Licensees,” U.S. Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives, Washington, D.C., Sept. 21, 2011, https://www.legis.state.pa.us/WU01/LI/TR/Transcripts/2019_0071_0005_TSTMNY.pdf.