The federal government prohibits users of Schedule I drugs from purchasing or possessing a firearm. Despite most states having enacted legal medical marijuana programs, marijuana is still federally illegal and designated as a Schedule I substance with no medical value. Individuals who use medical marijuana in accordance with their state’s licensed programs are nevertheless prohibited from purchasing or possessing a firearm under federal law.1See 18 U.S.C. § 922(g); § 924(a)(2). As such, the onus is placed on medical marijuana patients to either disclose their marijuana use, which disqualifies them from purchasing a firearm and requires they relinquish possession of all firearms, or misrepresent their status as a medical marijuana user, risking fines or imprisonment.
The following policy brief will address the problems inherent in the federal government’s current regulatory framework for the right to keep and bear arms in the context of medical marijuana use, circumstances that implicate the privilege against self-incrimination, and how to revise the regulatory framework in accordance with the guarantees of the Constitution.
The federal government regulates the sale, distribution, and ownership of firearms through the Gun Control Act of 1968 (“Gun Control Act”).2See 18 U.S.C. § 922(g). The Gun Control Act regulates the sale of firearms, primarily “to prevent guns from falling into the wrong hands.”3Abramski v. United States, 134 S. Ct. 2259, 2263 (2014). Under § 922(g) of the Act, the government identifies certain classes of individuals who are prohibited from owning or possessing a firearm, including felons, the mentally ill, and illegal aliens in the United States.418 U.S.C. § 922(g). They also identify individuals who are “an unlawful user of or addicted to any controlled substance” as a class of persons wholly prohibited from owning or possessing a firearm.518 U.S.C. § 922(g)(3).
Controlled substances are classified and defined in the Controlled Substances Act of 1970.6See 21 U.S.C. § 801. Under the Controlled Substances Act, marijuana is designated as a Schedule I drug.721 U.S.C. § 812. This designation defines the plant as a “drug…with no currently accepted medical use and a high potential for abuse.”8Ibid. Since marijuana’s scheduling under the Controlled Substances Act, the federal government has gone on to define marijuana as a cannabis plant with an excess of 0.3% THC, whereas if a cannabis plant contains up to 0.3% THC it is considered a hemp cannabis plant, not marijuana, and is legal to possess and use.9Agricultural Improvement Act of 2018.
To add to this complexity, the federal government has also authorized the sale of Marinol, a lab-derived, synthetic form of THC, and has designated Marinol as a Schedule III drug. Schedule III drugs are defined as drugs or other substances that have less potential for abuse than substances in Schedules I and II and are currently accepted for medical use in the United States, with abuse of the drug possibly leading to only a moderate or low physical dependence or high psychological dependence.1021 U.S.C.S. § 812 (3). Despite Marinol being lab-derived instead of naturally derived from a marijuana plant, there are no differences between the chemical structures or psychological effects of THC in a marijuana plant and the THC in a Marinol capsule.11Solvay Pharmaceuticals, Inc., Marinol, Federal Drug Administration Medical Device Databases, (last visited August 3, 2021) https://www.accessdata.fda.gov/drugsatfda_docs/label/2005/018651s021lbl.pdf. Therefore, the federal government has recognized some medical value associated with the use of THC, contrary to marijuana’s designation as a Schedule I drug.
Notwithstanding marijuana’s federal designation as lacking medical value, 36 states, the District of Columbia, Guam, Puerto Rico, and the U.S. Virgin Islands have legalized state-licensed medical marijuana programs.12National Conference of State Legislatures, State Medical Marijuana Laws, NCSL (Dec. 12, 2020 11:14 AM), https://www.ncsl.org/research/health/state-medical-marijuana-laws.aspx. Through these programs, individuals may be recommended medical marijuana to aid or cure their ailments or illnesses.13See R.C. § 3796.01
Further, under these programs individuals will not be criminally penalized for merely possessing or using medical marijuana in accordance with their state’s program.14See e.g., R.C. § 3796.01; Missouri Constitution, article XIV, § 1; P.S. § 10231.03. However, even though the majority of states recognize medical value of the marijuana plant, the federal government’s designation of marijuana as a Schedule I drug supersedes any state laws indicating otherwise.15California v. ARC America Corp., 490 U.S. 93, 100 (1989) (“when Congress intends that federal law occupy a given field, state law in that field is pre-empted.”) Consequently, legal state medical marijuana programs are still considered federally illegal, and medical marijuana use is still considered a violation of federal law.16See 21 U.S.C. § 812.
When a gun owner uses medical marijuana in accordance with their state’s program, they are nevertheless in violation of the Gun Control Act.1718 U.S.C. § 922(g); § 924(a)(2). Under § 924 of the Gun Control Act, violations of § 922(g) are punishable by a fine and a term of imprisonment up to 10 years.1818 U.S.C. § 924(a)(2). An individual who uses medical marijuana has two opportunities to violate § 922(g): when they purchase a firearm and when they own or possess a firearm. When purchasing a firearm, prospective gun purchasers are required to complete a Firearms Transaction Record – Form 4473 for the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”).19Bureau of Alcohol, Tobacco, Firearms, and Explosives, Firearms Transaction Record, ATF, 1, 4 (December 11, 2020), https://www.atf.gov/firearms/docs/4473-part-1-firearms-transaction-record-over-counter-atf-form-53009/download; Bureau of Alcohol, Tobacco, Firearms, and Explosives, Important Notice to All Federal Firearms Licensees, ATF, (Dec. 11, 2020, 1:00 PM), https://www.atf.gov/firearms/atf-form-4473-firearms-transaction-record-revisions. Prospective gun purchasers are required to self-disclose whether they are “an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance[.]”20Bureau of Alcohol, Tobacco, Firearms, and Explosives, Firearms Transaction Record, ATF, 1, 4 (December 11, 2020), https://www.atf.gov/firearms/docs/4473-part-1-firearms-transaction-record-over-counter-atf-form-53009/download.
The form further warns that “[t]he 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.”21Ibid. However, there is no similar mention of other specific prohibited drugs or substances, including heroin, 3,4-methylenedioxymethamphetamine (“ecstasy”), or lysergic acid diethylamide (“LSD”), which all are mind-altering substances and impact a person’s ability to safely use a firearm.22Ibid. Moreover, prospective gun purchasers who self-disclose that they use marijuana in accordance with their state’s legalized medical marijuana programs will be prohibited from purchasing a firearm. 23See e.g., Roman v. Whitaker et al., 2:2018cv04947, (Pa.D. 2018); Wilson v. Lynch, 835 F.3d 1083, 1089-99 (9th Cir., 2016) (“Prospective purchasers of firearms fill out Form 4473 when they seek to buy a firearm. Form 4473 includes Question 11.e., which asks “Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?” . . . If the answer is “yes,” the putative transaction is prohibited.”)
On the other hand, no similar warnings are given to current gun owners who become medical marijuana patients. When an individual is initially prescribed or recommended marijuana, there is no requirement for the treating physician to consider the potential legal impacts of their patients’ marijuana use, much less the implications for their right to keep and bear arms. Rather, the onus is on the gun owner to know they are in violation of the law when consuming a federally scheduled drug and should cease their illegal conduct on their own accord.24See United States v. Bowens, 938 F.3d 790, 792 (6th Cir. 2019)
Consequently, under the current federal regulations, if a prospective gun purchaser fails to self-disclose their medical marijuana use while seeking treatment in accordance with their state’s program, or if a current gun owner begins using medical marijuana, they may be subjected to fines or imprisonment imposed under § 924.2518 U.S.C. § 924(a)(2).
This confusion is amplified for Marinol patients who are either purchasing or possessing a firearm. While nothing in the Gun Control Act prohibits Marinol patients from owning or possessing a firearm, Marinol patients will still produce positive drug tests for marijuana. Therefore, even if a person is legally using Marinol in accordance with their prescription, they nevertheless may be required to demonstrate that they have acted in accordance with federal law.
Moreover, marijuana users have a duty to know they are in violation of § 924 and this duty is distinct from other classes of persons defined under § 922(g). In Rehaif, the Supreme Court considered the scope of the word “knowingly” under § 924(a)(2)—the section that defines the punishments for all categories of persons described in § 922(g).26Rehaif v. United States, 139 S. Ct. 2191, 2194 (2019); § 924(a)(2)
The court held that the defendant’s conviction for possession of a firearm as an alien unlawfully in the United States, in violation of § 922(g)(5) and § 922(a)(2), was rendered in error because the government failed to prove both that the defendant knew he possessed a firearm and that he knew he belonged to a relevant category under the Gun Control Act.27Rehaif, 139 S. Ct. at 2194.
The court recognized that while typically “ignorance of the law is no excuse,” that maxim only applies in circumstances where the defendant has the requisite mental state with respect to the elements of the crime but is unaware of a statute prohibiting their conduct. But, the maxim does not apply where the defendant “has a mistaken impression concerning the legal effect of some collateral matter and that mistake results in his misunderstanding the full significance of his conduct,” thereby negating an element of the offense.”28Rehaif, 139 S. Ct. at 2198 (2019) (citing Model Penal Code §2.04, at 27
Thus, the Supreme Court held “the word ‘knowingly’ [in § 924(a)(2)] applies both to the defendant’s conduct and to the defendant’s status.”29Rehaif, 139 S. Ct. at 2194. So, to convict a defendant under § 924(a)(2), “the Government . . . must show that the defendant knew he possessed a firearm and also that he knew he had the relevant status when he possessed it.”30Greer v. U.S., 593 U.S._(2021) (citing Rehaif, 139 S. Ct. at 2194.)
However, the standard set forth in Rehaif for evaluating knowing violations of § 924 by a person identified in § 922(g) has not been applied to individuals who are “unlawful user[s] of or addicted to any controlled substance,” as defined in § 922(g)(3).31See Bowens, 938 F.3d at 792
Instead, the Sixth Circuit has held to prosecute under § 922(g)(3), “the Government . . . must prove that defendants knew they were unlawful users of a controlled substance, but not, . . . that they knew unlawful users of controlled substances were prohibited from possessing firearms under federal law.”32Bowens, 938 F.3d at 797.
Consequently, failure to instruct the jury that defendants must have known they were users of a controlled substance in order to be guilty of violating § 922(g)(3) was not in error.33Bowens, 938 F.3d at 796.
In sum, the Gun Control Act prohibits individuals who are “unlawful user[s] of or addicted to any controlled substance,” from owning or possessing a firearm.3418 U.S.C. § 922(g). These unlawful users include medical marijuana patients who use marijuana as recommended by their treating physicians, in accordance with their state’s program, which constitutes knowingly using a federally unlawful substance.3518 U.S.C. § 922(g); Bureau of Alcohol, Tobacco, Firearms, and Explosives, Firearms Transaction Record, ATF, 1, 4 (December 11, 2020), https://www.atf.gov/firearms/docs/4473-part-1-firearms-transaction-record-over-counter-atf-form-53009/download. If a person violates the act by using medical marijuana while purchasing or possessing a firearm, they could face fines and a term of imprisonment up to 10 years.3618 U.S.C. § 924(a)(2).