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Being a state-registered medical marijuana caregiver or grower doesn’t automatically disqualify a person from owning a firearm, the FBI says. But merely possessing a medical cannabis card as a patient does render a person ineligible.
Amid the growing tension between federal gun policies and the ever-expanding state marijuana legalization movement, a little-noticed FBI memo from 2019 offers a lens into the byzantine legal interpretations surrounding cannabis and firearms—an issue that’s recently been raised in multiple federal court cases.
The government has several different ways it assesses firearm eligibility in the context of cannabis, according to the memo from FBI’s Criminal Justice Information Services (CJIS) Division, which was briefly noted in a report from The New York Times last week. In some cases, that involves affirmatively restricting gun rights based on activities or documentation that doesn’t necessarily mean a person is an active marijuana consumer.
At their core, the federal rules say that being an “unlawful user” of a controlled substance, including marijuana, means a person cannot buy or possess a gun. Would-be gun purchasers are required to disclose such use as part of a Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) form before making a purchase, and lying on that form is a felony offense.
The statute behind that prohibition has been challenged in a number of federal courts over the past couple of years, with more than one judicial body determining that the restriction is unconstitutional. The Department of Justice (DOJ) has steadfastly defended the ban, however, contending that medical marijuana patients and everyday consumers pose unique dangers to society that justify withholding Second Amendment rights.
But the federal government’s interpretation of the policy is apparently more nuanced, as evidenced by the memo from CJIS’s National Instant Criminal Background Check System Section that’s gone largely unscrutinized since being published more than four years ago.
A person’s firearm eligibility is partly determined by whether their use of a controlled substance is deemed “current.” FBI says that’s “not limited to the use of drugs on a particular day, or within a matter of days or weeks before, but rather that the unlawful use has occurred recently enough to indicate the individual is actively engaged in such conduct.”
“ATF has determined that the present time is represented by the time frame of within the past 12 months,” the memo says.
But making the determination also involves an “inference of current use or possession” that may be “drawn from evidence of recent use or possession” or a “pattern of use or possession that reasonably covers the present time.”
What constitutes such “evidence” isn’t quite so simple, however.
For example, if a person admits to using marijuana—or if they are “in possession of a medical marijuana user card”—that is “enough to establish an inference of current use for the federal drug prohibition,” the document says, even without additional evidence of actual current use. “The information may be obtained by an individual admitting they have a medical marijuana user card or by presenting a copy of the medical marijuana user card within the past year.”
“The following scenarios will be used to determine the disqualification period in regard to possession of a medical marijuana user card:
1. One year from the date of the medical marijuana user card’s expiration date; or
2. One year from the date of ‘admission’ of possession of the medical marijuana user card, if no expiration date is available; or
3. One year from the date the medical marijuana user card is relinquished.”
Notably, the memo does carve out certain exceptions to its cannabis rules for gun ownership, clarifying that possession of marijuana is not disqualifying if the person is identified as a medical cannabis “caregiver, grower, provider, etc.”
“Use of the marijuana (or other controlled substance) must be established for the prohibition to exist,” FBI says. “Similarly, an individual may possess a medical marijuana handler’s card as a caregiver, grower, or provider for another party, but would not be disqualified, unless use was established.”
Other rules detailed in the memo apply broadly to any controlled substance but stand out for their administrative specificity.
For instance, when a person is convicted of possession or use of an illicit drug, FBI counts that as evidence of present use within the last year—regardless of the length of time since the arrest itself. If a person is arrested but their conviction is deferred (e.g. through a pretrial diversion program), that judgment cannot be used as evidence of current use. Instead, the memo says, that information must be gleaned from the arrest report.
When it comes to arrests for drug paraphernalia, that on its own isn’t automatically disqualifying for firearm ownership. However, such an arrest in the past year “can also be researched to determine if the incident report shows the individual admitted to the use or possession of a controlled substance at the time of the paraphernalia arrest.”
Drug tests can also be used as evidence to restrict gun rights under certain circumstances. While the memo says an individual officer’s assessment, or a drug-sniffing dog detecting a controlled substances, cannot be used as the evidentiary basis, an incident report about a “baggie containing a ‘green leafy material’ from the subject’s shirt pocket” that tests positive for cannabis can be considered proof of current drug use.
It’s not clear if any of the rules detailed in the 2019 memo have been updated or revised since their issuance. Marijuana Moment reached out to the FBI for clarification, but a representative was not immediately available.
In the years since the document was issued, numerous additional states have adopted laws legalizing cannabis for medical or recreational use. And the widening gap separating state and federal marijuana laws has prompted legal challenges to the underlying ban.
Last month, for example, the Justice Department told the U.S. Court of Appeals for the Third Circuit that historical precedent “comfortably” supports the restriction. Cannabis consumers with guns pose a unique danger to society, the Biden administration claimed, in part because they’re “unlikely” to store their weapon properly.
In a brief submitted in that case, attorneys for the Justice Department argued the firearm ban for marijuana consumers is further justified based on historical analogues to restrictions on the mentally ill and habitually drunk that were imposed during the time of the Second Amendment’s ratification in 1791.
The federal government has repeatedly claimed that those analogues provide clear support for limiting gun rights for cannabis users. But several federal courts have separately deemed the marijuana-related ban unconstitutional, leading DOJ to appeal in several ongoing cases.
The Justice Department asserted similar points during oral arguments in a separate but related case before the U.S. Court of Appeals for the Eleventh Circuit in October. That case focuses on the Second Amendment rights of medical cannabis patients in Florida.
Attorneys in both cases have also touched on a U.S. Court of Appeals for the Fifth Circuit ruling from August, Daniels v. United States, that found the ban preventing people who use marijuana from possessing firearms is unconstitutional, even if they consume cannabis for non-medical reasons.
DOJ had already advised the Eleventh Circuit court that it felt the ruling was “incorrectly decided,” and the department’s attorney reiterated that it’s the government’s belief that “there are some reasons to be uncertain about the foundations” of the appeals court decision.
The U.S. District Court for the Western District of Oklahoma also ruled in February that the ban prohibiting people who use marijuana from possessing firearms is unconstitutional, with the judge stating that the federal government’s justification for upholding the law is “concerning.”
In U.S. District Court for the Western District of Texas, a judge ruled in April that banning people who use marijuana from possessing firearms is unconstitutional—and it said the same legal principle also applies to the sale and transfer of guns.
In August, meanwhile, ATF sent a letter to Arkansas officials saying that the state’s recently enacted law permitting medical cannabis patients to obtain concealed carry gun licenses “creates an unacceptable risk,” and could jeopardize the state’s federally approved alternative firearm licensing policy.
Shortly after Minnesota’s governor signed a legalization bill into law in May, the agency issued a reminder emphasizing that people who use cannabis are barred from possessing and purchases guns and ammunition “until” federal prohibition ends.
In 2020, ATF issued an advisory specifically targeting Michigan that requires gun sellers to conduct federal background checks on all unlicensed gun buyers because it said the state’s cannabis laws had enabled “habitual marijuana users” and other disqualified individuals to obtain firearms illegally.
Meanwhile, attorneys for President Joe Biden’s son Hunter—who has been indicted on a charge of buying a gun in 2018 at a time when he’s disclosed that he was an active user of crack cocaine—have previously cited the court ruling on the unconstitutionality of the federal ban, arguing that it applies to their client’s case as well.
Republican congressional lawmakers have filed two bills so far this session that focus on gun and marijuana policy.
Rep. Brian Mast (R-FL), co-chair of the Congressional Cannabis Caucus, filed legislation in May to protect the Second Amendment rights of people who use marijuana in legal states, allowing them to purchase and possess firearms that they’re currently prohibited from having under federal law.
Senate Majority Leader Chuck Schumer (D-NY) has committed to attaching that legislation to a bipartisan marijuana banking bill that advanced out of committee last month and is pending floor action.
Meanwhile, Mast is also cosponsoring a separate bill from Rep. Alex Mooney (R-WV) this session that would more narrowly allow medical cannabis patients to purchase and possess firearms.
One place where the matter is particularly relevant is Jersey City, New Jersey, where Mayor Steven M. Fulop (D) is suing over a state policy that allows police officers to use marijuana while off duty.
That challenge, however, has sparked pushback from two police officers, who’ve since sued Jersey City over what they say is a politically motivated move by Fulop in service of a future gubernatorial campaign.
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