Southwest Florida

Choose: Concealed Carry License or Medical Marijuana Card

Marijuana and Concealed Carry Gun
Medical marijuana and concealed carry – you can’t legally have both.

“Can I keep my guns if I have a medical marijuana card in Florida?” “Can I get or keep a Florida concealed carry license if I have a medical marijuana card?”

I’ve been getting these questions a lot lately. There seems to be an inclination for people to try to find some wiggle room in the laws… “But, medical marijuana (MMJ) is legal in Florida,” or “But, if my neighbor can use opioids and have a gun, why can’t someone who is prescribed medical marijuana have a gun?” or, my favorite, “But what if no one finds out?”

That’s the sound of my eyes rolling.

The law about any kind of marijuana and firearms is cut and dried. There is no wiggle room. If you use medicinal or recreational marijuana, you cannot legally possess, buy or use firearms or ammunition. Period. End of discussion. It’s a choice you have to make – pot or guns. You can’t legally have both.

State laws don’t matter much when it comes to firearms; the federal laws preempt them, and the federal laws make all marijuana an illegal Schedule 1 drug. Doctors can’t prescribe Schedule 1 drugs and keep their DEA licenses. (The states got around that by having doctors merely “recommend” MMJ). And federal laws prohibit users of illegal drugs from buying or possessing firearms.

The ATF sent a letter to all federally-licensed firearms dealers back in 2011 making it very clear that anyone using (or reasonably believed to be using) marijuana – even if their state “legalized” it – is prohibited from “shipping, transporting, receiving, or possessing firearms or ammunition.” The ATF has not changed its stance since that time. And there’s a legal presumption under current federal law that a state medical marijuana card holder is an illegal marijuana user for the purposes of firearms possession, purchase, etc. (see Wilson v. Lynch).

Of course, I hear people say all the time, “It’s only illegal if I get caught.” Well, yeah. That’s true of all laws. We weigh the costs and benefits of complying with laws every day. We may choose to speed because when we weigh the chance of getting caught and the potential cost of a $100 ticket versus the endorphin rush, we’re willing to take the risk. But fooling around with federal firearms laws isn’t like gambling against getting a $100 ticket – if you get caught it can result in felonies, large fines, and federal prison time.

If you own guns and are considering getting a medical marijuana card (or already have one), and you have any concerns about breaking laws, you need to get rid of them. Sell them. Give them away to your spouse, your adult children, your friends and family. You don’t necessarily have to go to an FFL – private gifts and transfers are legal in Florida (as of today). But I’d recommend that you have some sort of proof that you don’t own them – even a handwritten, signed bill of sale.

If you have a good gun trust, you could resign as trustee and physically transfer all your guns to your successor trustee. While you cannot possess or use those guns as long as you have a MMJ card, at least your family can still use and inherit them (see a gun trust lawyer to ensure it’s done properly).

Currently, we don’t have gun or MMJ registration lists in FL, but as our state becomes bluer, that could change. Hawaii had a big problem when they cross-referenced their MMJ list against their gun registration list and demanded that MMJ users give up their guns. The uproar made them back off – no government agency was willing to go door-to-door to confiscate guns. But now, with a definite trend toward anti-gun political policies and a proliferation of so-called “red flag” laws, we’re getting closer and closer to government confiscation for “safety” reasons. And, as any first-year law student could tell you, safety is whatever the government says it is.

As for the Florida concealed carry license, some people (including myself) have pointed out that the application never specifically asks about medical marijuana use. Even the Possible Reasons for Ineligibility section of the Dept. of Agriculture’s website says nothing about marijuana use of any kind. Both are careless oversights that could easily be corrected. But if you read the website and application carefully, you’ll notice several disclaimers that indicate that you’re responsible for reading and complying with Fla. Stat. 790.06.  Fla. Stat. 790.06(2)(n) essentially says “Hey, in addition to this really long list of reasons why you wouldn’t qualify for a Florida concealed carry license, you also can’t be prohibited from buying or possessing a firearm under any other Florida or federal law.” Oops. As you know, ignorance of the law is no excuse. Carelessness on the part of the Dept. Of Agriculture is also no excuse. If you use any marijuana or have a MMJ card (remember the ATF letter and the court’s “presumption” ruling), you can’t legally obtain or keep a FL concealed carry license because you’re breaking federal firearms laws.

And don’t rely on the people in the MMJ dispensaries, on the MMJ blogs and websites, or the MMJ doctors to provide accurate legal advice regarding firearms law. They have a financial agenda and they aren’t lawyers. One local doctor has been known to tell people that as long as a patient gets his concealed carry license before he gets his MMJ card, he can legally keep his guns and concealed carry license. Um, no.

Naturally, the most common question I get after I explain the current state of firearms and MMJ laws, is “How will they catch me?” I don’t know. Maybe you won’t ever get caught. Maybe a vindictive ex or neighbor will rat you out. Maybe you’ll get pulled over for something and a drug dog will find a trace in the car where your gun is. How do the police and FBI catch people all the time? If that’s a risk you’re willing to take, I know a good criminal defense attorney you can call from jail.

Nearly everyone I talk to about MMJ and firearms laws asks me what I think about these laws: “Aren’t they stupid?” “Don’t you think they should be changed?” While that’s a fun exercise for personal conversations, what I think has no bearing on the laws. As a lawyer, my job is to educate people about the laws as they currently stand.

I realize the Constitution has been warped almost beyond recognition, but as of today, it mandates that the only way to change these laws is at the federal level. Either marijuana would have to be removed from Schedule 1, or the federal gun laws would have to provide an exemption for marijuana users.  I don’t see either happening any time soon. There’s no indication that Congress feels any urgency to change the classification of marijuana. They know the media will portray them as advocating that “potheads” be legally allowed to use evil, “child-killing” guns. Those optics aren’t something on which most politicians are willing to risk their careers. But, as always, if it’s important to you that certain laws change, let your representatives know your thoughts and reasoning, and use your money and your vote carefully.

So, the short answer to “Can I keep my guns and Florida concealed carry license if I have a medical marijuana card?” is… no, not legally.

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