Thirty-six states now have some form of a legal medical marijuana market. But, due to federal law, each state’s legal cannabis program is currently at odds with citizens’ Second Amendment gun rights.
Federal law designates any person who uses marijuana, even for medical purposes, as an “unlawful” user of drugs and therefore someone who is not legally eligible to purchase or possess firearms in any context. The federal government has yet to legalize or decriminalize marijuana but has, for the most part, essentially given the green light to states to run legal marijuana programs, recreational and medical, so long as they place reasonable regulations on the market. But the threat of federal action is real and because cannabis is still considered a Schedule 1 drug, the federal government is essentially forcing medical marijuana uses to choose between legally obtaining a firearm or using their legal medication.
A new paper from Ohio State University and Reason Foundation explores how this is a violation of medical marijuana users’ constitutional rights. Helen Sudhoff, the brief’s author, writes:
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. 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 restrictions that prevent medical marijuana users from using firearms could be leading to injuries and lives lost. A 2012 report by the Obama Administration found that a reasonable estimate for the defensive use of guns per year could be 300,000. While that number remains controversial and no firm quantitative method for obtaining that number exists, there is no disputing that guns are used defensively and that those uses often prevent injury and death.
Restricting gun ownership, therefore, restricts a person’s right to self-defense embedded in the 2nd amendment. In the 2008 Supreme Court case, District of Columbia v. Heller, the high court defended individuals’ right to gun ownership. Heller remains a significant Supreme Court decision because it solidified self-defense as the “core” or “central component” of the Second Amendment. Practically, being able to use a gun for self-defense is the primary purpose of the Second Amendment and any law which infringes upon that right should face scrutiny.
The current legal framework leaves medical marijuana users completely unable to defend themselves in any situation and should be subject to the highest level of court scrutiny. Sudhoff, in the Reason policy brief, argues that the Heller decision rendered unconstitutional the requirement that guns be unloaded, disassembled, or bound by a trigger lock because it “made it impossible for citizens to defend themselves, even in their own homes.” Assembling a gun or removing a trigger lock in a heated moment when the weapon was needed would render it practically useless and therefore infringes upon the core right of self-defense. Yet a requirement that gun owners register their guns was kept constitutional because it did not directly impact an individual’s ability to defend themselves, it simply made gun purchase and ownership a bit more strenuous.
There is no loophole of any kind in the existing web of drug and gun laws that would allow legal medical marijuana users to legally use or own a gun in any circumstance. If a medical marijuana patient did use a gun in self-defense, they could still be charged with an offense, which suggests existing laws would fail the test administered by the Heller precedent and should be ruled unconstitutional.
The current legal situation undermines the constitutional rights and potentially risks the health and safety of the 5.4 million medical marijuana users all across the country. To this point, medical marijuana users have been forced to make a terrible choice of forgoing their prescribed medicine or forgoing their Second Amendment rights.
With 36 states having legalized medical marijuana, it is far past time for the federal government to rectify this constitutionally flawed situation by recognizing medical marijuana users as lawful citizens who have Second Amendment rights.