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Federal law prohibits medical marijuana users from owning guns

State officials are waiting to see how Florida’s law allowing medical marijuana squares with federal law prohibiting pot users from owning firearms.
State officials are waiting to see how Florida’s law allowing medical marijuana squares with federal law prohibiting pot users from owning firearms. National Institute on Drug Abuse

By federal law, the untold amount of Floridians who legally own firearms and the more than 2 million residents registered to carry a concealed weapon cannot use medical marijuana to treat conditions such as Parkinson’s disease, ALS, glaucoma or post-traumatic stress disorder — despite a 2017 state law allowing weed to be prescribed by doctors.

It’s unclear how the law will be enforced locally in the “gunshine state,” and the issue appears to be more apposite as U.S. Attorney General Jeff Sessions Thursday repealed four Obama-era directives discouraging federal prosecutors from pursuing criminal marijuana cases in states that legalized recreational pot use.

“It is the mission of the Department of Justice to enforce the laws of the United States, and the previous issuance of guidance undermines the rule of law and the ability of our local, state, tribal, and federal law enforcement partners to carry out this mission,” Sessions said in a statement released Thursday. “Therefore, today’s memo on federal marijuana enforcement simply directs all U.S. Attorneys to use previously established prosecutorial principles that provide them all the necessary tools to disrupt criminal organizations, tackle the growing drug crisis, and thwart violent crime across our country.”

State Rep. Cord Byrd, a Jacksonville Beach Republican and an attorney specializing in firearms law, is warning Floridians that despite medical marijuana being legal in the state since the summer, if you choose to use cannabis to treat a health issue and own a firearm, the federal government considers you a lawbreaker and could soon come down on you.

“Eventually, someone will get made an example of to dissuade other people from having both” a state-issued medical marijuana card and a firearm, Byrd said Thursday. “People need to be aware they could run afoul of federal law if they come across the wrong federal prosecutor at the wrong place at the wrong time.”

The U.S. Drug Enforcement Administration classifies marijuana as a Schedule 1 controlled substance, on par legally with cocaine, heroin, ecstacy and LSD. The Bureau of Alcohol Tobacco, Firearms and Explosives is the federal agency that regulates firearms and ammunition sales nationwide. Gun purchasers must fill out paperwork known as ATF Form 4473 before being allowed to take possession of their weapons. The form asks if the purchaser is an “unlawful user” or is “addicted to any controlled substance.”

In a September 2011 open letter to all federally licensed firearms sellers, the ATF stated that anyone holding a state-issued medical marijuana card “should answer ‘yes’ ” to question 11.e. on the 4473 form that asks about controlled substance use, and the firearms dealer is legally prohibited from selling a weapon to that person.

ATF spokeswoman Cherie Duvall-Jones told the Philadelphia Inquirer this week that no change has been made in the law since the letter was released seven years ago.

“There are no exceptions in federal law for marijuana purportedly used for medicinal purposes, even if such use is sanctioned by state law,” Duvall-Jones told the Inquirer.

Erin Muir, legislative assistant to state Rep. Holly Raschein (R-Key Largo), who was co-sponsor of a 2014 bill that passed the Legislature legalizing a strain of non-euphoric cannabis that helps children suffering from seizures, said Raschein is aware of the issue.

“We’re monitoring all the developments happening that are outside our control,” Muir said.

An expanded law passed the Legislature during a special session last June clearing the way for patients suffering from a myriad ailments to receive medical marijuana recommendations from their physicians and apply for a state medical marijuana card from the Florida Department of Health. Patients with a card can receive a 70-day supply of marijuana and refill the prescription twice before having to go back to their doctors for a refill.

The Department of Health does not mention anything about state or federal gun laws on its application for medical marijuana cards, Communications Director Mara Gambineri said in an email Thursday.

“The Department of Health has no role in the regulation of firearms, therefore, we are not equipped to educate on state or federal gun regulations,” Gambineri said.

While federal law has never changed since 29 states have passed bills beginning several years ago legalizing either or both recreational or medicinal marijuana, observers say Sessions’ decision Thursday to repeal several Obama administration weed enforcement policies means those using the drug under the protection of their respective states’ laws have reason to worry.

“Obviously, this has a lot to do with what they’re doing on a federal level,” Muir said.

And Byrd noted that there is already precedent for enforcing the federal ban on selling guns to pot users, even in states where it’s legal to consume it. In 2016, the 9th U.S. Circuit Court of Appeals ruled that prohibiting those with state-issued medical marijuana cards from purchasing firearms does not violate their Second Amendment rights.

Byrd, who opposes the federal law, said changing it is not something that could likely be accomplished in the state Legislature, especially given the 9th Circuit’s decision. For now, he said, it is a matter for the U.S. Supreme Court to deal with.

“That’s where we are right now,” Byrd said.

David Goodhue: 305-440-3204

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