[Updated June 12, 2018]
It’s hard to believe it’s been over a year since I wrote One Toke Over the Line: Medical Marijuana Snuffs Out Gun Rights and even longer since I wrote Up In Smoke: Gun Rights Under Current Marijuana Laws. Pot is still making headlines, but now we’re starting to see actual governmental actions instead of just theories. And it’s rather terrifying.
A few months ago, shortly after the first medical marijuana dispensary opened in Honolulu, Hawaii, the Honolulu Police Department sent letters to people who were on both the state’s medical Mary Jane (MMJ) patient registry and the state’s firearms permit registry. The letters ordered the recipients to voluntarily surrender or transfer their firearms within 30 days. Yes, they cross-referenced the electronic databases and were able to pinpoint which medical marijuana patients owned guns.
The letter cited only a vague state law and didn’t explain the connection between the state law and federal law. Under federal law, medical marijuana is still a Schedule I controlled substance (illegal) and MMJ users are prohibited from buying and possessing firearms. [The possessing part of the law applies to gun owners who “… ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” And the Supreme Court has said pretty much everything affects interstate commerce – even things that really don’t.] If you’re prohibited on the federal level, most states piggyback on the federal laws so you’re also prohibited under state law.
But the letter doesn’t indicate what will happen if the letter recipient fails to voluntarily surrender her guns. Hawaii requires that all transfers be reported to the chief of police so the permit database can be updated. Therefore, the police chief will know if the letter recipient doesn’t surrender or transfer her guns. Then what? Will the police come politely to her door with a search warrant? Will a S.W.A.T. team break down her door in a no-knock raid to confiscate the contraband weapons and arrest her? Or is the letter just an empty threat – all sound and fury signifying nothing? [Update: due to the backlash, the Honolulu PD backed off a bit to review the policy.]
As Floridians, we tend to sit back and watch things like this play out in liberal, anti-gun bastions such as Hawaii, and say, “Well, that’s awful for them, but that won’t happen here in Florida. We don’t have gun permits or registration.” No, right now, we don’t. But things change. Florida is becoming bluer every year as the urban areas get larger, denser, and more influential in elections. Permits and registries could be in our future.
While the current MMJ laws state that the MMJ registry is subject to HIPPA laws and will be shared with only state and local government agencies in limited circumstances, laws change. Our MMJ laws are still wet and squishy, so there’s no telling what will happen a few years down the road – especially if the balance of power shifts. And we do have one registry – concealed carry licensees. It’s entirely conceivable that, at some point, CCL applications and renewals could be cross-referenced against a new MMJ database and CCL applicants who are found in the MMJ database might not be issued a CCL. Or maybe there will be two different kinds of CCLs issued at some point – one that includes firearms and one that doesn’t.
The Florida CCL statute specifies that a concealed carry license shall be issued if certain requirements are met. The very last requirement on the list is that the applicant “Is not prohibited from purchasing or possessing a firearm by any other provision of Florida or federal law [emphasis added].” The Dept. Of Agriculture’s helpful online eligibility questionnaire asks a bunch of questions that will be familiar to anyone who’s completed an ATF Form 4473 in a gun shop. Question #25 on the CCL eligibility questionnaire is: “Are you an unlawful user of, or addicted to, any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)?” If you mark “Yes,” your submission screen will indicate that you’re not eligible for a concealed carry license. But, oddly, the actual application never asks that question, so someone who didn’t read the actual statute or use the online eligibility questionnaire wouldn’t know they weren’t eligible – and neither would the Dept. of Agriculture. Hmm.
Of course, even if our CCL and MMJ databases were cross-referenced, no one knows how many guns a CCL applicant or holder has and there’s also no way to track whether they were surrendered or transferred. So, unlike our brothers in Hawaii, at this point we probably don’t have to worry too much about S.W.A.T. coming to our doors to take our guns.
But here’s a thought – what if a Democratic-controlled Florida decided to voluntarily report all MMJ patients to NICS (National Instant Criminal Background Check System)? HIPAA, you say? Meh – that’s violated all the time in the name of “public safety.” There’s no law forbidding a state from giving information about prohibited persons to the FBI. In fact, states are always in the anti-gun crowd’s crosshairs because they allegedly don’t provide enough information to NICS.
We can’t just sit back and ignore what’s happening in Hawaii. We’ll likely see more acts like this one as more MMJ programs ramp up. Of course, even without registration databases, marijuana use (medical or recreational) makes you just as ineligible to buy a gun as does a dishonorable discharge or a felony.
So, what do you do if you seek MMJ and own guns? You have to transfer the guns to others (gifts, sales, surrenders to the police) before you actually use MMJ. In some cases where the use of MMJ is expected to be temporary, a well-written gun trust may be a good way to keep the guns in the family while keeping them out of the possession of the temporarily prohibited person.
We make choices about the law every day. We drive too fast, we massage our income tax returns, we find out we didn’t pay for something but we don’t return it. We weigh the potential benefit against the potential costs. There’s a good chance you’ll get hit with a speeding ticket, but you may see that as a small price to pay for that exhilarating adrenaline rush. There’s likely very little chance you’ll get caught lying on a Form 4473 about using pot or possessing guns while using MMJ, but prison time, huge fines, and potentially a felony conviction that will result in the loss of all guns forever is a pretty big price to pay if you do get caught.
Bottom line: You are not a “law-abiding gun owner” if you use medical marijuana and own guns that ever crossed a state line, or were manufactured by a company that sells across state lines or even sells only within the state of manufacture (the Supreme Court has said that “affects” interstate commerce). Firearm possession and transfers are subject to both federal and state laws – we can’t choose to follow only the ones we like. That’s what criminals do. Under federal gun laws, a MMJ user is the same as a crack or meth user. Until marijuana comes off the federal list of Schedule I drugs, gun owners with certain illnesses or conditions who want to stay legal will have to choose between the relief provided by MMJ and their guns.
There will be lawsuits soon that will help to clarify state and federal laws when MMJ and guns are involved. It’ll be interesting to see how things play out. I’ll keep you posted. 🙂
If you have questions about gun trusts or the legal possession or transfer of firearms during your lifetime or at death, give Cindy a call at 941-444-5958.
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