Whether a marijuana user has the right to purchase or possess a firearm has become a contentious U.S. legal issue.
In many states, the possession of marijuana is now permitted, but it remains illegal under the federal Controlled Substances Act. The federal Gun Control Act of 1968 also prohibits people who have unlawfully used controlled or scheduled substances from possessing firearms. Courts have been divided over whether a marijuana user complying with state law should be considered an “unlawful” drug user for federal firearm regulation.
Even if the federal Drug Enforcement Agency (DEA) moves marijuana from Schedule I to Schedule III in the Controlled Substances Act, as it seems poised to do, any user without a valid prescription could be considered an “unlawful” user by federal standards. Even state-registered medical marijuana patients may not be clear because prescriptions are also federally regulated.
There is no clear evidence that medical marijuana patients are any more disposed to engage in violent crime than other groups. On the contrary, the available evidence indicates that medical marijuana is associated with slightly lower crime rates.
While this issue continues to be debated in federal courts, many lawmakers at the state and federal levels have proposed legislation to resolve this apparent conflict. Several states have considered legislation that would either conform state firearm regulation to federal standards or instead protect a state-legal marijuana user’s right to own a firearm under state law.
Let’s explore the evolution of federal laws involving gun ownership for individuals using marijuana legally under state laws, and discuss recent efforts by state legislators to address and reconcile discrepancies between state and federal regulations.
Who is an “unlawful” marijuana user?
Federal courts have reached inconsistent conclusions about whether a person who uses marijuana following state law should be allowed to purchase or possess a firearm.
Federal courts’ understanding of the Second Amendment needed to adapt to the U.S. Supreme Court’s 2022 decision in New York State Rifle & Pistol Association Inc. v. Bruen. The plaintiffs in Bruen, the New York State Rifle & Pistol Association and two individuals, challenged New York’s requirement that applicants demonstrate “proper cause” to obtain a concealed carry license.
In a 6-3 opinion written by Justice Clarence Thomas, the Supreme Court ruled that this requirement was unconstitutional, concluding that the Second Amendment protects an individual’s right to carry a handgun for self-defense outside the home. The majority decided that regulations on the right to bear arms should be consistent with the nation’s historical traditions.
This Supreme Cout decision has led to new questions about whether barring marijuana users from purchasing or possessing firearms is consistent with historical American approaches to firearm regulation. In at least one case, a federal district court has ruled that this ban is inconsistent with the standard set in Bruen.
In 2022, Oklahoma resident Jared Harrison was charged with unlawful possession of a firearm after an officer of the Lawton Police Department found marijuana and a handgun in his car. Judge Patrick Wyrick of the U.S. District Court for the Western District of Oklahoma dismissed the indictment, ruling that the federal statute banning “unlawful” users of cannabis from possessing firearms violated the Second Amendment. Wyrick emphasized that marijuana use lacks the consequences (like violent behavior) historically used to justify firearms regulation, stating that “mere use of marijuana does not indicate that someone is in fact dangerous, let alone analogous to a ‘dangerous lunatic.’”
In the case of United States vs. Daniels, a Mississippi resident, Patrick Daniels, was convicted of possessing a firearm after he was deemed an “unlawful user” of marijuana in 2022. Daniels admitted to smoking marijuana multiple days per month, leading to his conviction. However, the government did not provide evidence of his intoxication at the time of arrest or specify when he last used marijuana.
The Daniels case touches both the broad question over whether his conviction aligns with the historical tradition of firearm regulation in the United States, as well as the narrower issue of whether a person must be actively impaired for the prohibition to apply.
The Fifth Circuit Court overturned Daniels’ conviction in August 2023, arguing that disarming a sober citizen solely based on past drug use lacks historical precedent in American jurisprudence. More broadly, the court concluded, “… [M]ore generalized traditions of disarming dangerous persons [do not] support this restriction on nonviolent drug users.”
In other words, the Fifth Circuit concluded both that the government could not restrict gun ownership for marijuana users during periods of sobriety and that the government could not restrict gun ownership for marijuana users at all.
A fourth case decided before the Supreme Court’s decision in Bruen adds to the legal complexity: While individuals with medical marijuana cards are prohibited from purchasing firearms under federal regulations, those who already possess firearms are still able to obtain a state medical marijuana card.
In Wilson v. Lynch (2016), S. Rowan Wilson was denied the purchase of a firearm by a Nevada gun dealer because she held a state-issued medical marijuana card. This rejection came after a 2011 letter from the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) directed gun dealers to consider medical marijuana cardholders as unlawful users of a controlled substance. Wilson filed a lawsuit alleging that the ATF rule violated her First, Second, and Fifth Amendment rights. The lower courts dismissed her case twice, and on her second appeal, the Ninth Circuit affirmed the lower court’s dismissal.
The court contended that under federal law, marijuana is a Schedule I controlled substance, and users are prohibited from purchasing firearms due to the increased likelihood of violence associated with drug use.
Wilson argued that she did not use marijuana but held the card to support the political cause of legalization. Wilson’s argument was rejected, as the court deemed the restriction on firearm purchases did not impede her ability to advocate for marijuana legalization through other means. Her Fifth Amendment claim also failed, as the court ruled there is no constitutional right to hold a medical marijuana card and also purchase a gun. The court concluded that Wilson could either forfeit her card to buy a firearm or keep her card and forgo new firearm purchases, prioritizing the federal government’s interest in regulating firearm sales over her individual rights in this context.
The same fight occurred in the U.S. District Court for the Northern District of Florida, where the Florida Department of Agriculture and Consumer Services commissioner and three Florida residents filed suit in April 2022. In the case Fried et al. v. Garland et al., pending in the U.S. District Court for the Northern District of Florida, plaintiffs challenged whether medical marijuana use under state law should prevent individuals from exercising their Second Amendment rights.
The U.S. Department of Justice has filed a motion to dismiss, arguing that medical marijuana patients are too dangerous to own firearms, citing concerns about public safety.
The two plaintiffs are registered medical marijuana patients and are barred from purchasing a firearm. One plaintiff owns a firearm and would like to use marijuana for medical reasons. Will Hall, an attorney with the Dean, Mead & Dunbar firm representing the plaintiffs, told The News Service of Florida that the Supreme Court ruling puts the onus on Garland’s office to justify the gun denial.
Last year, before the U.S. Court of Appeals for the Eleventh Circuit panel, Hall argued that banning people who use medical cannabis from owning guns is inconsistent with historical firearm regulations and the original context of the Second Amendment. The Department of Justice (DOJ) argued in response that early laws restricting gun rights over drunkenness and mental illness provide a historical basis for the ban.
“Our reading of the case is [that] the federal government has to show that this regulation, which is basically treating medical marijuana patients as if they are just, per se, too violent to possess guns, has some kind of historical tradition, and we just don’t see it,” Hall said.
Hall said Fried’s legal team scoured the issue to see if there was “any equivalent regulation” in the distant past, but they couldn’t find any. “There’s really no equivalent for what we have in medical marijuana now, which is that the states have made it legal and the federal government has, not just through a letter or some promise but through law, said we will protect those programs from interference.”
Although an opinion hasn’t yet been delivered, during oral arguments the judges questioned the DOJ’s classification of these state-registered medical cannabis patients as not law-abiding.
States considering legislation to allow firearm possession by marijuana users
In 2024, several states introduced bills that directly challenge the DOJ’s position, though, as with drug legalization, states cannot stop the federal government from continuing to enforce its ban.
In Minnesota, where adult-use marijuana is legal, state legislators introduced companion bills House File 657 and Senate File 89. According to the Minnesota legislation, a patient enrolled in the medical cannabis registry will not be considered an “unlawful user” of a controlled substance under state law. Participation in the medical cannabis registry does not disqualify individuals from possessing firearms and ammunition.
The bills specify that a sheriff cannot deny a permit to carry solely based on the applicant’s enrollment in the medical cannabis registry or use of medical cannabis for a qualifying condition. Further, any state paperwork used to approve or disapprove a person’s eligibility to purchase, own, possess, or carry a firearm must allow qualifying patients to refrain from reporting their use of medical cannabis.
However, the bill adds that individuals enrolled as patients in the medical cannabis registry who use medical cannabis and know or have reason to know that it can cause impairment will still be prohibited from carrying a pistol in a public place.
A Maryland House committee heard testimony on House Bill 0296, which seeks to ensure that registered medical marijuana patients in Maryland can purchase, own, and carry firearms, regardless of their cannabis use.
Testimony during the hearing on Maryland’s bill largely featured veterans and advocates, including Army veteran Randall Cody Floyd, who emphasized the disparity between firearms policies for medical cannabis users and those using prescription opioids. Floyd stated, “Basically I chose my medical cannabis card over my gun rights, and I should not have to do that. I can get my carry permit with prescription opioids or painkillers, but for something that I choose that’s a less harmful route, I can’t own a gun. Why is that?”
Mark Pennak, president of Maryland Shall Issue, a gun rights advocacy group, cautioned that even if H.B. 0296 passes, federal law still criminalizes cannabis users’ firearm ownership, exposing them to arrest and potential felony charges. Gun dealers may also refuse sales to individuals acknowledging marijuana use, regardless of state law.
The companion legislation, Senate Bill 0348, passed the Maryland Senate with strong bipartisan support. If enacted, the law would take effect on October 1.
In Kentucky, where marijuana use is permitted solely for medical purposes, lawmakers proposed Senate Concurrent Resolution 44, urging the United States Congress to “repeal federal restrictions that prohibit the possession and use of firearms by individuals who use marijuana in compliance with state or tribal laws.”
States seeking to conform to federal law
On the other hand, some lawmakers have worked to align their states with the federal ban, introducing bills that ensure medical marijuana users will not be permitted the right to bear arms unless marijuana is federally legalized.
South Dakota and West Virginia both introduced bills that, if passed, would require that each application for a medical marijuana registry identification card and renewal card include a notice that informs medical marijuana applicants that “[U]ntil marijuana is legalized under federal law, an individual who is a current user of marijuana is, under federal law, an unlawful user of a controlled substance; and, Federal law does not exempt the use of marijuana for medicinal purposes.”
South Carolina lawmakers also affirmed these federal gun restrictions in proposed legislation to authorize a medical marijuana market. That bill, H. 346, passed the state Senate this spring but stalled in the House. This legislation was carried over from prior sessions and is likely to be reintroduced again next year. If eventually passed, medical marijuana patients will receive a flier notifying them of their inability to possess a firearm. Additionally, legislators will require a statement signed by qualifying medical cannabis applicants declaring that the individual is not employed in, or contracted to perform, any job in which the person will carry a weapon, including a firearm.
Elsewhere, Idaho legislators introduced a bill that explicitly states, “a license to carry concealed weapons shall not be issued to any person who is an unlawful user of marijuana.” Idaho is one of only five states that prohibits the use of marijuana of any kind, including for medicinal purposes.
Federal bills
There have also been attempts in the U.S. Congress to alter the federal approach to firearm regulation for marijuana users, particularly for veterans.
Last year, Rep. Alex Mooney (R-W.V.) introduced House Resolution 363: The Second Amendment Protection Act, while Rep. Brian Mast (R-Fla.) introduced House Resolution 2772: The Gun Rights and Marijuana (GRAM) Act. Both seek to remove federal firearms-related restrictions for individuals who live in a state or on lands where adult marijuana use is legal under state or tribal law, given that an individual’s marijuana use does not violate state or tribal laws.
Rep. Mast stated, “Addressing this issue is of particular importance to the veteran community,” adding, “No veteran that I know wants to be forced to choose between a viable treatment option for conditions like PTSD, and the ability to protect themselves and their families. The GRAM Act is about ensuring no one has to make that choice.”
Both bills were referred to the House Committee on the Judiciary and have not seen further progress. However, it is not uncommon for legislation addressing issues like cannabis and firearms to face hurdles in the legislative process.
Conclusion
Federal case law around the Second Amendment has generally prohibited the possession of a firearm by a person who is considered a risk to themselves or others, as well as by a person convicted of committing or threatening a violent crime.
Many states are recognizing that marijuana is safe to consume with minimal abuse risk. The mere use of marijuana does not indicate that someone is dangerous or suffering a mental health condition that would inhibit them from gun ownership.
There is no clear basis for restricting an individual’s right to possess a firearm due to marijuana consumption, particularly in light of the Supreme Court’s new standard that firearm regulation remains consistent with historical precedent. Alcohol users do not confront a blanket prohibition against firearm ownership; they are barred from carrying a firearm while actively intoxicated. A similar standard should be applied to marijuana users, and this standard should be consistent at the state and federal levels.