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 dived into the complications of navigating state and federal laws. Cannabis use leading to the loss of an individual’s Second Amendment rights has been a topic of conversation since the Nixon Administration. The issue has become increasingly relevant in recent years in the wake of a wave of state-level marijuana legalization. While proposed changes to federal law and/or Drug Enforcement Administration scheduling would resolve the current imbroglio, it’s important to remember that, in the meantime, individuals across the country are caught in a gray area between state law, federal law and the enforcement of those laws. Part 2 discussed 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.

Millions of otherwise law-abiding citizens have been turned into felons, U.S. Rep. Thomas Massie, a Republican from Kentucky, observed in the first installment of this series. And those who do what’s necessary to stay in compliance? Often they’re forced to choose between potentially life-changing medication and the means to defend themselves.

Parts 3, 4 and 5 are profiles depicting the lives of three Americans so affected by the current mismatch in state and federal law. This final piece on marijuana and gun owners lays out a timeline for current cannabis legalization and reviews the opinions of some lawmakers.

Cannabis and Firearms Series

Editor’s Note: This is part of a series on cannabis and firearms that was originally featured in 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. We do, however, advise that all gun owners should do everything within their power to follow all state and federal laws. The aim of this series is to examine the legal concerns and ramifications that firearm 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: 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 Cannabis and Firearms: Legalizing Marijuana and Guns Use


When it comes to legal precedent involving the intersection of cannabis and Second Amendment rights, the pickings are slim, according to Dan Clancy. “There’s not much at all out there because it’s just not litigated,” said the Dallas-based attorney. Clancy said that the way the law currently stands hasn’t changed much since the ratification of the United States Constitution. “Whenever we have a conflict of laws,” he declared, “and you’ve got the federal law saying one thing and you’ve got state law saying another, well, the Supremacy Clause kicks in.”

And because federal law is the supreme law of the land, Clancy stated, it wins every time.

A Timeline of Legalizing Marijuana

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.[1]

The court acknowledged that Wilson’s right to bear arms under the Second Amendment had been infringed to some extent

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.

A 2013 Update

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 memorandum stated that federal cannabis enforcement resources would be concentrated on cases involving:

  • Revenue from the sale of cannabis going to criminal enterprises, gangs and cartels
  • State-authorized cannabis activity being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity
  • Violence and the use of firearms in the cultivation and distribution of cannabis
  • Distribution of cannabis to minors
  • Diversion of cannabis from states where it is legal under state law in some form to other states
  • Drugged driving and the exacerbation of other adverse public health consequences associated with cannabis use
  • Growing of cannabis on public lands and the attendant public safety and environmental dangers posed by cannabis production on public lands
  • Cannabis possession or use on federal property[2]

Nevada Medicinal User Challenges Gun Laws

The next meaningful development in the timeline 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.

“The entire judicial system is corrupt,” Wilson said in an email. “We will not have true justice nor freedom in the USA until … this branch of government is restored. ‘Guns and pot’ are but one of many subjects.”

2018’s ‘War on Drugs’

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. Sessions went on to state in his memo that “these principles require federal prosecutors deciding which cases to prosecute to weigh all relevant considerations, including federal law enforcement priorities set by the Attorney General, the seriousness of the crime, the deterrent effect of criminal prosecution and the cumulative impact of particular crimes on the community.”

Some interpreted the statement as a new “War on Drugs,” though the effect was not that dramatic, according to Clancy. “I can tell you, from a practical standpoint,” he stated, “I never saw anything to suggest that there was any sort of uptick in the prosecution of federal marijuana cases. And so it was more of a posture, I believe.”

South Texas College of Law Houston Professor Dru Stevenson said the guidance was largely a “slapback” at the Obama administration and that any stepped-up enforcement of existing gun laws was mainly focused on high-crime areas. “And so [18 U.S.C. 922 (g)(3)] is going to come up in that,” he stated. “But they’re not targeting marijuana users. But they’re also not promising to give them a break either. Which is a little different than the tacit understanding before the Sessions Memo.”

Notable Outliers

Tom Firestone noted in a January 2020 post to the Global Cannabis Compliance Blog that a review of DOJ cases brought since the Sessions Memo largely adhered to the Obama administration’s enforcement priorities.[3]

There are exceptions, of course. Following the Sessions Memo, the U.S. Attorney’s Office for the District of Maine prosecuted two cases involving false statements made to a federal firearms licensee. (Voters approved legal adult-use marijuana at the polls in November 2016. Years before, in 1999, Maine passed a law allowing medical use of marijuana.) According to court records, in March 2017, Richard Quattrone bought a firearm from a Kennebec County firearms dealer. During the transaction, Quattrone made false statements about his current residence and unlawful use of marijuana.

In February and March of 2017, Donald Henderson purchased a firearm from a dealer in the same county. During the transaction, he falsely claimed to be the actual purchaser of the firearm when he was not. He also made false statements about the unlawful use of marijuana. Both cases were investigated by the ATF, and both men pled guilty in U.S. District Court in 2018. When asked why the U.S. Attorney’s Office decided to pursue those cases, Assistant U.S. Attorney Joel Casey emailed the following statement: “Why we chose to prosecute these two cases is not something in the public record and, as such, not something that I’m comfortable commenting on.”

Challenging the State

Another illustrative case came out of the Pine Tree State following the July 2018 arrest of Richard Tonini. When a Maine State Police Trooper pulled the 58-year-old Bucksport native over for a traffic violation, he found marijuana, $5,000 cash and two handguns in the car. Tonini was charged with furnishing scheduled drugs and being a prohibited person in possession of firearms. A Hancock County jury acquitted him of furnishing but convicted him on the firearms charge. His attorney, Max Coolidge, appealed the conviction to the Maine Supreme Judicial Court in September 2019. Coolidge pointed out that Tonini was charged under a Maine statute that essentially mirrored 18 U.S.C. 922 (g)(3).

“Even though it tracks the same language, it was a state law,” Coolidge declared. “And so that was the distinction. That it was the state prosecuting somebody under state law in the state court.” He decided to focus on the Second Amendment as the top-level issue he would argue before the court. “I thought of it this way,” Coolidge said, “any fundamental individual right, any constitutional right, the state can only regulate that if they have a compelling interest in doing so. And they choose a means, but it’s narrowly tailored.”

That’s the basis of the Supreme Court’s strict scrutiny analysis, which is applied to anything that’s considered a fundamental individual right, which is what the Second Amendment, an individual’s right to keep and bear arms, is considered in the wake of District of Columbia v. Heller.

“If the state no longer makes the use of cannabis illegal,” Coolidge asked, “what’s their compelling interest in preventing people who are users from owning a firearm? That’s how I was going to attack the constitutionality of the statute.” The court didn’t make a decision, however, because the prosecutor filed a motion to have the case vacated after oral arguments. Tonini’s conviction was overturned, and his firearms rights were restored.

Rehaif v. U.S.

Even though it doesn’t involve marijuana, 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.

Heading Toward Legal Marijuana Use

The Controlled Substances Act lists marijuana as a Schedule I controlled substance and […] there are no exceptions in federal law for medicinal purposes, even if such use is sanctioned by state law.

The Department of Justice made headlines again in March 2020 when the ATF rescinded a 2006 provision that allowed Michigan gun dealers to accept a state concealed pistol license in lieu of conducting a federal background check. The advisory said the ATF learned that CPLs were being issued to applicants who were likely prohibited persons as a result of convictions for misdemeanor crimes of domestic violence or being habitual marijuana users.

Law professor Dru Stevenson said the reversal was a result of Michigan legalizing recreational marijuana with a 2018 initiative, coupled with its “Permanent Brady Permit” status.

“This is one of those nitty-gritty regulatory things that people don’t talk about,” he said of the policy change. “But to me that’s fascinating. It’s where the rubber meets the road. How does the background check system actually work? And how are regulators dealing with things?”

Meanwhile, successful ballot measures in the 2020 U.S. election legalized recreational marijuana in Arizona, New Jersey, South Dakota and Montana, bringing the tally of legal-weed states to 15 along with Washington, D.C. And because South Dakota legalized recreational and medical cannabis use at the same time, there are now 36 states and the nation’s capital with medical marijuana laws in place.

“It’s very clear that the trajectory in our legal system is toward legalizing marijuana,” Stevenson said. “Every year a few more states go down that road. And no one is going the other way.”

Rights Vs. Ideology

Riding this wave of public sentiment, legislators in several legal-cannabis states have introduced bills that would enact state-level protection of users’ Second Amendment rights. Cannabis advocate Kim Petters teamed up with then-Delaware State Sen. Anthony Delcollo on SB 79, a bill that would have restored gun rights to registered qualifying patients under the Delaware Medical Marijuana Act.

“It was a tough fight in a blue state,” Petters said. “We had to meet with, like, every single legislator.” The effort paid off, however, when the bill passed the Senate in a unanimous vote. It then went to the House, where it passed committee. But a shutdown of the Delaware General Assembly because of the coronavirus caused it to expire before it could hit the floor for a vote.

“It’s dead,” said State Rep. Jeffrey Spiegelman, the bill’s sponsor in the House. “We have to reintroduce it. Start over from scratch.”

It’s a worthwhile effort, according to Delaware cannabis advocate Sam Chick. Even though SB 79 wouldn’t have changed federal law, it nevertheless would have afforded medical cannabis users some protection.

“It basically said that no state resources — law enforcement resources, court resources or any kind of judicial resources — would be used to enforce [the federal statute] in Delaware,” he said. “And someone should not lose their rights because they’re being treated medically.”

While Petters said she was depressed for a week following the demise of SB 79, she’s already reaching out to new lawmakers with the hope of getting similar legislation passed in the future.

Similar bills in Maryland, Colorado and Oklahoma failed in the wake of inaction, COVID-19-related shutdowns and other reasons, though House Bill 2612, signed into law by Oklahoma Gov. Kevin Stitt in April 2019, does include some provisions to protect the gun rights of cannabis-using Oklahomans.

Marijuana and Gun Laws Across the U.S.

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 Mooney did not make himself available for an interview, U.S. Rep. Thomas Massie (R-KY), the Second Amendment Protection Act’s first co-sponsor, cleared time in his schedule to share his thoughts with Concealed Carry Magazine readers.

“I’ve polled this in my own congressional district,” he said. “And regardless of whether people think marijuana should be legal or not, they’re overwhelmingly in favor of getting rid of the federal prohibition and letting states decide. By the way, that’s my position.”

Massie had been working on his own legislation but decided to drop it in favor of getting behind Mooney’s bill for simplicity’s sake. “I think we’re up to HR 7500 right now,” he stated. “Those are sequentially numbered bills. If one bill suffices, I don’t need my own bill. Put all our wood behind one arrow to use a non-firearms-related analogy.”

Massie, who jokes he doesn’t know which cloakroom to use at work because of disagreements with both parties, said some of his fellow Republicans are to blame for the lack of cannabis reform to date. “You have some Republicans who’ve completely abandoned all their fiscal conservative bonafides,” he said. “And so they cling dearly to their social conservative bonafides. So I think that’s why some Republicans, and particularly the false conservatives, are clinging to marijuana prohibition.”

Massie recognized that he has some Republican colleagues who genuinely think it’s a bad idea to legalize marijuana. But they have to remember that they’re arguing for larger government when they say that. He also said the GOP might have held onto the House in the 2018 election had it advanced states-rights-focused marijuana legislation.

“You know, most people don’t walk into the booth thinking, OK, I’m going to vote for the one that’s going to legalize pot,” he said. “But it would probably move the needle 5 percent in a general election. And you’ve got probably 40 seats in the House of Representatives that were decided by less than 5 percent.”

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.

“It’s politics as usual,” said Wisconsin attorney Tom Grieve.

Regardless of the fate of the MORE Act, Texas attorney Clancy said the time will come when marijuana will be removed as a Schedule I controlled substance. And he believes that time is soon.

“And once that happens,” he said, “we can smoke marijuana and defend ourselves at the same time.”

Impacting the Everyday American

As for Petters, life goes on for the Delaware mother of four. She still has no medical marijuana card, and she has yet to complete the paperwork for her concealed carry permit (something she resolves to quit putting off). Not wanting to break the law, she’s going unarmed in the meantime.

“I have to go get my fingerprints done for another little venture I’m doing,” she said. “And it’s so annoying because, looky, looky, I’m squeaky clean. I’ve never been arrested. I have no criminal history. I’m not on any sex registry. There’s no reason to have my rights taken away.”

Petters ran for Kent County Clerk of the Peace in the November 2020 election. She ran a 70-day campaign against someone whose family had held the position for the previous two decades. Adding to the odds stacked against her, she’s a Republican in a very blue state.

She lost her bid but gained valuable experience. Five years from now, she hopes to be a state representative.

“I want to make sure that our Constitution is not forgotten about,” she declared. “And I’d really like to represent the people in my district. Not just for the Second Amendment, but for everything.”

Endnotes

[1] 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.
[2] James M. Cole, Deputy Attorney General, “Memorandum for All United States Attorneys, Subject: Guidance Regarding Marijuana Enforcement,” U.S. Department of Justice, Office of Deputy Attorney General, Washington, D.C., Aug. 29, 2013, https://www.justice.gov/iso/opa/resources/3052013829132756857467.pdf.
[3] Tom Firestone, “The Sessions Memorandum: Two Years Later,” Global Cannabis Compliance Blog, Jan. 6, 2020, https://globalcannabiscompliance.bakermckenzie.com/2020/01/06/the-sessions-memorandum-two-years-later/.