Due to federal regulations, legal medical marijuana cardholders are unable to legally purchase or own firearms under federal law. This has long been a policy problem identified by the marijuana legalization movement and a Missouri bill signed into law earlier this month could offer a solution to states wanting to restore medical marijuana users’ Second Amendment rights.
The federal Gun Control Act (GCA) of 1968 states that no “unlawful user” of a controlled substance, such as cannabis, shall be allowed to purchase or own firearms. The Bureau of Alcohol, Tobacco, and Firearms (ATF) has reaffirmed several times that it still considers medical cannabis to be an illegal substance, as defined by the Controlled Substances Act (CSA) of 1970, and therefore designates anyone with a medical marijuana card as ineligible to purchase or own firearms.
This restriction falls more sharply on medical marijuana users than recreational users since they are registered in a government database that can be easily cross-referenced. Recreational marijuana users, by contrast, can effectively purchase marijuana anonymously and are therefore not subject to this scrutiny, although they would be forced to lie on the firearm background check form 4473 in order to complete a purchase.
Shortly after Michigan legalized medical marijuana, the ATF directed state officials to cease using a certain background check system because it didn’t include medical marijuana registrations and reminded them they needed to include “unlawful” medical users in all firearm background checks.
Pennsylvania responded to a similar message received from the ATF saying that the GCA and CSA lacked the authority to coerce a state into taking an administrative action to facilitate federal scrutiny and surveillance by joining its medical marijuana database with a commonly used criminal justice database called JNET.
The Missouri bill signed into law this month provides an even bolder response to the issue. The new law challenges the constitutionality of the CSA and GCA by pointing to the Second and 10th Amendments. The 10th amendment says states have legal jurisdiction over any policy not explicitly enumerated by the U.S. Constitution for federal jurisdiction. For example, national security and taxes are explicitly assigned to federal authority, but the Constitution provides no direct textual support for marijuana prohibition or policies.
The Missouri legislation, House Bill 85, implicitly argues that the state—not the federal government—should determine whether citizens who possess marijuana are legally defined as “law-abiding citizens.” The bill text states:
“[R]eserving for the state governments the power to legislate on matters concerning the lives, liberties, and properties of citizens in the ordinary course of affairs… the term ‘law-abiding citizen’ shall mean a person who is not otherwise precluded under state law from possessing a firearm.”
Missouri is clearly saying that the state has the sole ability to determine who is a law-abiding citizen in matters concerning “liberties” and “properties.” Additionally, the Second Amendment provides broad firearms protections. Missouri has already chosen to designate medical marijuana patients as legal under state law and this bill asserts Missouri’s 10th Amendment constitutional right to make that designation over the federal government.
The Controlled Substances Act even contains a 10th Amendment-like clause which says when in “positive conflict” between state and federal law where both cannot stand, that state law should take precedence in areas that would “otherwise be within the authority of the state.”
Missouri’s designation of medical marijuana users as law-abiding citizens, therefore, takes precedence over the federal government’s designation.
The new Missouri law acknowledges the federal constitution as a compact among the states, and as such is subject to judgment by each party as to whether it is executing its assigned duties properly. It says, “each party (state) has an equal right to judge for itself as to whether infractions of the compact (Constitution) have occurred, as well as the right to determine the mode and measure of redress (Author’s additions).”
In this case, the mode of redress is to deny a federal designation of “unlawful” status to anyone who possesses marijuana via the 10th Amendment, effectively re-establishing their 2nd Amendment rights to purchase and possess firearms in the process.
With 36 states having legalized medical marijuana, it becomes easy for some to forget that marijuana’s federal status continues to create serious legal questions without clear answers. Missouri’s HB 85 offers a compelling 10th Amendment argument that states may have rightful jurisdiction in this area.
In essence, the entire marijuana legalization movement has embodied the ideal of ardent federalism. The Missouri law could lay the groundwork for other states that have legalized medical marijuana to extend their rejection of federal marijuana law. States can re-assert their authority to designate medical marijuana cardholders as law-abiding citizens within their jurisdiction via the 10th Amendment and stop the injustice of legal medical marijuana patients being banned from gun ownership.