In this video, Cindy discusses some gun trust horror stories she’s come across in her practice. There’s no wiggle room when you mess up a gun trust that hold NFA firearms. Can you say “contraband”?
[Updated June 15, 2020: The Supreme Court denied cert in all 10 cases. So, gun laws remain in limbo for at least another term.]
Recently, the Supreme Court declined to rule in a Second Amendment case, New York State Rifle & Pistol Association Inc. v. City of New York, which could have allowed it to clarify just how far the landmark Second Amendment cases Heller and McDonald go. But New York City changed the controversial law as soon as it realized the case was headed to the Supreme Court; since the law was no longer in effect, a majority of Justices said there was no case to rule on. But it looks like some Massachusetts cases just may provide the opportunity NYC didn’t.
In District of Columbia v. Heller, (2008), the Court struck down the District of Columbia’s handgun ban and its requirement that lawfully owned rifles and shotguns be kept “unloaded and disassembled or bound by a trigger lock.” The Court declared that an individual’s right to keep and bear arms for lawful purposes is independent of service in a militia, and that such lawful purposes included self-defense within the home. Washington D.C. is a federal enclave, so people were unsure whether this ruling applied to the states under the “incorporation” theory of the Fourteenth Amendment. In McDonald v. City of Chicago (2010), the Court affirmed that it did.
So what’s going on in Massachusetts – my birthplace, and also the birthplace of the American Revolution? The place where its citizens once stood up to government oppression and where the confiscation of guns and gunpowder by the British was one factor that sparked a war? Under its current laws, individuals who want to carry a concealed firearm have to prove to government authorities that they have “good reason” to fear for their safety before a permit is issued. Not to go too in depth into constitutional law, but laws that restrict our individual rights can’t be arbitrary. In other words, they must be quantifiable, measurable, and apply equally to everyone. The argument here is that “good reason” is very subjective and therefore unconstitutional. And, of course, the other argument is that self-defense is a natural right and no reason is needed when it comes to self-protection.
Massachusetts has also enacted so-called “assault weapons” and ammunition bans. Its definition of “assault weapons” is so broad that it includes many popular guns. I’ve seen estimates that about half of the types of guns legal under federal law are banned in MA. The constitutional issue here is some wording in Heller that implies that individuals have a right to own guns “in common use.” But appeals courts are reading Heller and McDonald oddly – everyone’s all over the map and no one seems to really know how to apply either case.
The MA ban also includes “copies or duplicates” of so-called assault weapons. What does that mean? No one knows for sure. Another tenet of constitutional law is that a law can’t be vague, so that’s also on the table.
There’s no guarantee the Court will agree to hear these MA cases, but it’ll sure be interesting if it does.
Other articles you may find interesting:
***Want to learn more about how to protect your family from the government, lawsuits, accidental disinheritance, or nursing homes? Click THIS LINK to book a seat at one of our upcoming fun and educational workshops.***
I’m not a doctor, but I’ve watched lots of Grey’s Anatomy. Would you trust me to give you sound medical advice or write you a prescription? Probably not. But apparently some doctors think they’re qualified to give legal advice.
Maybe they binge-watched Law and Order or stayed at a Holiday Inn Express. I don’t know. But, sadly, people will rely on their bad legal advice – just because they’re doctors. And perhaps also because it’s what they want to hear.
I’ve written several articles about guns and marijuana, so my professional curiosity made me read this article. From the first sentence, I could tell it was heavily biased – marijuana is the Holy Grail, Hallelujah! That was fine – I personally don’t care about pot one way or the other. But it made me quickly scroll to the bottom to see who wrote the article… a medical marijuana doctor. Hmm.
The part of the article that made the hairs on my neck stand up was this:
Many people wanting medical marijuana avoid it because they fear they might not be able to own guns. This is not true. You can own guns and in fact have a concealed carry permit in Florida and have a medical marijuana card, no problem.
As an actual Florida lawyer who takes an avid interest in gun law, I can tell you that the last sentence is legally false.
I’ve written and presented about this over and over again, but people who have a vested interest in peddling pot keep telling the same lies to people who want to believe those lies.
I’ll break it down very simply:
- Federal laws trump state laws when it comes to drugs. Under federal law, marijuana of any kind is a Schedule I drug – totally illegal. Florida and some other states have chosen to look the other way within their borders, but that doesn’t change the federal law.
- Federal laws trump state laws when it comes to guns. Under federal law (18 U.S.C. § 922(g)(3)), you cannot possess a gun if you are a user of an illegal drug (pot, heroin, meth, crack, etc.) – or an abuser or illegal user of a legal drug (taking your spouse’s prescription meds, abusing prescription opioids, etc.). A federally-licensed gun dealer makes you swear on a form that you don’t do any of that, and even private sellers cannot legally sell to anyone they suspect may fall into any of those or other prohibited categories. States can be more restrictive, but they can’t override the federal gun laws. You must comply with all the federal gun laws first, and then comply with the state gun laws.
- Florida’s concealed carry licensing statute specifically states in Fla. Stat. 790.06(2)(n) that you can’t get a concealed carry license if you’re prohibited from owning guns under any federal law. Logically, that would also mean that you cannot keep your concealed carry license and carry a gun (you could carry a concealed knife) – if you use medical or recreational pot.
Bottom line? If you choose to use medical or recreational marijuana, you’re prohibited from possessing guns under federal law. And having a concealed carry license for something you’re not allowed to have makes no sense.
Will you get caught? Who knows. We weigh that risk every time we choose to break any law. But keep in mind that the penalties are steep – they’re felonies. And yes, I realize that our own Dept. of Agriculture Commissioner is flagrantly breaking state and federal laws by telling medical marijuana users that they can have a concealed carry license. But that doesn’t make it legal.
Remember…when seeking medical advice, ask a doctor. When seeking legal advice, ask a lawyer. And also remember that Google is neither.
Other articles you may find interesting:
Guns and marijuana are hot-button topics right now.
Most gun owners know by now that marijuana and guns don’t play well together. Federal law prohibits anyone who uses medical or recreational marijuana from possessing or buying guns – even if their state laws allow the use of medicinal marijuana. And, here in FL, our concealed carry statute says that a concealed carry license “shall be issued” unless the applicant is prohibited by the conditions enumerated in the statute, or is “prohibited from purchasing or possessing a firearm by any other provision of Florida or federal law.” Yes, I know our current Dept. of Agriculture Commissioner and her office are flagrantly violating our state and federal laws by ignoring that pesky little detail, but that’s another story.
Our U.S. Representative Greg Steube (R – 17th District) has always been a staunch supporter of the Second Amendment and gun rights. He recently introduced the Marijuana 1-to-3 Act of 2019, which would move marijuana from Schedule I to Schedule III of the Controlled Substances Act of 1970. (Before 1970, drugs were regulated by the states).
Schedule I drugs were deemed to have a high potential for abuse, no currently accepted medical use in treatment in the United States, and were unsafe to use even under under medical supervision. Drugs on this list, in addition to marijuana, include heroin, LSD, mescaline (peyote), ecstasy, quaaludes, bath salts, etc. These drugs are illegal under any circumstance and cannot be prescribed by doctors.
Schedule III drugs were deemed to be not as dangerous and are available by prescription only. The potential for abuse is less than the drugs in Schedules I and II, the drug has a currently accepted medical use in treatment in the United States, and abuse of the drug may lead to low or moderate physical dependence or high psychological dependence. Drugs on this list include forms of testosterone and estrogen, and drugs containing codeine (such as Tylenol with Codeine).
When I read Greg’s bill, I thought “That’s a good start. It would get rid of the federal gun possession prohibition and all doctors would be able to prescribe it for various conditions, which could certainly be a boon for our veterans and people undergoing chemo. It would also spur legitimate medical research on the effects of marijuana and THC – how it interacts with other drugs, its effect on the brain (especially of minors), its effect on babies in utero, etc. Win-win.”
Well, others didn’t see it that way. They say it doesn’t go far enough. They want marijuana to “be legalized.” But what exactly do they mean by that? Lots of things are legal – tomatoes, tobacco, machine guns, vodka, vitamins, prescription drugs, Twinkies, etc., but they’re all regulated differently. If you ask three different people what should happen with marijuana, you’ll get four different answers. Everyone seems to want to have their THC-infused cupcake and eat it, too.
Here are various proposals I’ve heard:
- Only medical marijuana should be legal. These folks believe marijuana has legitimate medical uses and should only be available from any doctor by prescription. Okay, Greg’s bill would do that and it would remove the gun possession prohibition. A medical marijuana user would have the same constitutional rights as an opioid user. But, let’s think about this further. Will insurance cover it? Will it only cover some forms of it? Medicare costs are already out of control – what would this do? The minute third party insurers get involved, the price of prescription pot will skyrocket, just like every prescription drug out there. Also, is there a reliable instant marijuana test for employees whose jobs require they not be impaired? And you thought Big Pharma was a problem? Wait until you meet its incestuous cousin, Big Weed.
- Recreational marijuana should be sold and regulated like rum. Okay, so unlike the people supporting #1, these people are saying there is NO legitimate medical use, and it’s a purely recreational drug like alcohol. It would remove the federal gun possession prohibition, which is a plus. To get to this point, marijuana would have to be removed from the DEA Schedules completely and brought under the auspices of the BATFE. (Because they’re so good and efficient at what they do, let’s give them even more power over our lives). And, of course, to sell pot legally, someone would have to obtain a state license, like a liquor license. More regulation. And where would pot be sold? In existing liquor stores or in dedicated privately owned pot shops? Or in government-owned pot shops like socialist Canada has? Or both? Would you be able to buy an edible at a bar? On an airplane? There are no federal regulations banning alcohol advertising on TV – the industry has been self-regulating for decades – but will a newly-minted weed industry be willing to hamstring itself? Or will the feds use it as another reason to step in and regulate all alcohol and weed advertising? All this regulation and taxes (yes, there will be confiscatory taxes imposed to raise revenue and to “raise awareness of” or “to fight” something) will drive the prices up and contribute to a thriving illegal black market. We already have an illegal street trade, and medical marijuana pushers…I mean doctors…who will write a medical marijuana recommendation for anyone for any reason, so it seems the only people who would really benefit from this would be gun owners who don’t like buying their recreational pot on the street.
- Marijuana should be sold as a supplement, like vitamins. Because it’s “natural.” LOL. Yeah, I suppose if you chewed a leaf or flower directly from the plant you have growing in your organic home garden, you could say it was natural. There’s nothing natural about the commercial processing of THC and pot – the chemicals used are as bad as those used in tobacco, and growers use all kinds of toxins to keep bugs and animals from eating the plants. But, let’s go with the premise. It would certainly remove the federal gun possession prohibition. Pot would be loosely regulated by the FDA just to make sure it wasn’t pure poison and wasn’t marketed using pure lies, and it could be advertised on the radio, TV, and billboards, and sold in Walmart’s vitamin section, near the condoms and makeup. See anything wrong with that plan?
- Split the baby – regulate marijuana like beer and rum. These folks also don’t believe there’s any medical use for pot, that it’s purely recreational. But they think marijuana should be regulated by THC content, with the lower THC pot regulated like beer and the higher THC pot regulated like liquor. Yes, it would remove the federal gun possession prohibition. But we’d have all of the same problems I mentioned in #2, plus now we’d have pot being sold in Publix and advertised on TV.
- Split the baby lite – regulate marijuana like alcohol and supplements. Again, these people obviously don’t believe there’s any legitimate medical use for pot. This “solution” is similar to #4 except that the higher THC pot would be regulated like either beer or rum, and the lower THC pot would be sold like a supplement. All of the problems I mentioned in #2, #3, and #4 would apply.
- Marijuana should be sold like tobacco. Well, this seems to make some sense if you believe there’s no medicinal value in THC. It would remove the federal gun possession prohibition, and, in theory, only people over a certain age could buy it. Of course, we know that’s false as we currently have way too many minors using tobacco and vaping products. Of course, the FDA and BATFE would be in charge of regulating it, which shouldn’t give anyone the warm and fuzzies. Interestingly, during my research for this article, I discovered that the FDA’s rules about what constitutes a tobacco product are as broad as the BATFE’s rules regarding what constitutes a machine gun. Which explains why the FDA regulates rolling papers and e-cig coils just as the BATFE regulates things it deems as “machine gun parts” (even things that definitively aren’t). The FDA also has rules about “manufacturing” that are eerily similar the BATFE’s “manufacturing” rules.
- Marijuana should be sold like veggies. The thought here is that marijuana is just a plant, like an onion or broccoli, and should be sold the same way. Pot could be bought at grocery stores and farmers markets by people of any age. It would certainly remove the gun possession prohibition, but I somehow doubt that our society is ready to go that far. And, there’s a very important case, Wickard v. Filburn, that has allowed the national government to say that pretty much everything – even purely intrastate commerce – affects interstate commerce, and, thus, the national government can regulate it. So, we’d be right back where we started with the national government regulating marijuana.
- The all-over-the-map “solution”. These people don’t know what they want done. They vaguely think some pot should be designated for medicinal use, but are unclear as to whether it should be available by prescription or OTC. They don’t have any idea how some versions of pot would be selected for this treatment, but they’re sure that other versions of pot should be available recreationally. Somehow.
My point is that there’s no simple solution to this complex problem, and anyone who just says “legalize it” hasn’t thought things through. And, every single “solution” expands the role of the government in our lives and constricts liberty.
And what do I think should be done? That’s a tough question. First, as a small government/free trade/constitutional republic Libertarian, it find it appalling that the national government has any control over drugs at all. For nearly 200 years, drugs, like alcohol and guns, had been regulated by the states. I look at the history of Prohibition and the violence caused by that law, which led to the expansion of the national government and the creation of the ATF (now BATFE). And then I see how the violence decreased substantially when Prohibition was repealed. But we didn’t learn our lesson, and we repeated history with this losing political battle called the War on Drugs, and we’re now living with the violence caused by those laws tearing our cities apart.
Unfortunately, I can’t put the toothpaste back in the tube, and it’s likely the national government will just continue to grow in power as we continue to lose our individual rights to self-determination – all under the false flag of safety. If we lived in a truly free society, I’d support removing marijuana from all Schedules and letting it be sold like rum (which, in my world, wouldn’t be regulated by the national government, either). Let adults decide whether they want to use recreational drugs or not, and let them suffer the dire consequences of abuse.
But we don’t live in a free society. We’ve created a vast, suffocating web of government safety nets to “protect” people from themselves. More laws and regulations would be chained to our necks no matter what choice we make. So, given our current socialist-leaning reality, and since I think marijuana may have some valid medicinal value and should be studied further so adults can make educated decisions about using it, I think moving marijuana from Schedule I to Schedule III is a very reasonable first step.
***Want to learn more about how to protect your family from the government, lawsuits, accidental disinheritance, or nursing homes? Click THIS LINK to book a seat at one of our upcoming fun and educational workshops.***
[Updated March 28, 2020]
NFA/Title II firearms include: machine guns, short-barreled rifles and shotguns, silencers (suppressors), destructive devices (e.g. Molotov cocktails, bazookas, mortars, etc.), and “any other weapons (AOW).” AOWs include things such as cane guns, gadget-type firearms such as “pen guns,” etc.
The NFA/Title II umbrella also includes any parts designed for fabricating any of these weapons.
A little bit of background…
Back in the 1930s, criminals such as John Dillinger, Bonnie Parker, and Clyde Barrow were making headlines. And the organized crime gangsters, which were the natural result of Prohibition, were also a big political problem. So the federal government decided to attack the guns being used by these criminals. (Sound familiar?)
At that time, it was widely acknowledged that the Second Amendment wouldn’t allow the government to prohibit the ownership of firearms, so the politicians decided to tax certain weapons out of existence instead.
The gangsters who made the news loved their Tommy guns and sawed-off shotguns, so The National Firearms Act of 1934 (NFA) imposed a registration process and a $200 transfer tax (about $3500 today) on the purchase or transfer of machine guns, sawed-off shotguns and rifles (technically, short-barreled shotguns and rifles), and silencers (suppressors). The expensive tax effectively took such weapons out of the hands of most law-abiding citizens.
Prohibition ended and gangsters were no longer in the headlines. The Supreme Court struck down the NFA’s registration process and, over time, public support for the law waned.
But the assassinations of the Kennedys and Dr. King in the 1960s made guns a political punching bag once again.
In 1968, the Gun Control Act (GCA) was passed. It did many things, but primarily brought all firearms regulation under the ever-expanding “interstate commerce” clause of the U.S. Constitution. It also banned the importation of military surplus weapons unless they met the now infamous “sporting purposes” requirement.
Title II of the GCA strengthened the old NFA law by resurrecting the registration requirement and adding destructive devices and AOWs to the list of regulated items. However, the $200 transfer tax was not changed or linked to inflation. Interestingly, the transfer tax on AOWs was set at only $5, not $200.
NFA/Title II firearms are sometimes also referred to as Class 3 weapons. All gun dealers must obtain a federal firearms license (FFL). A gun dealer who wants to offer NFA firearms must also pay a Special Occupational Tax (SOT). The amount of the tax depends on the business classification: an importer of NFA firearms is Class 1, a manufacturer of NFA firearms is Class 2, and a dealer of NFA firearms is Class 3. Since many people buy their NFA/Title II weapons from a “Class 3” dealer, such weapons have become colloquially known as Class 3 weapons.
So, NFA/Title II firearms such as machine guns, silencers, and short-barreled rifles (SBRs) are legal on the federal level, but you have to jump through some hoops to purchase or manufacture them. Additionally, some states may ban some or all NFA weapons.
However, no NFA weapons are banned in Florida.
Other articles you may find interesting:
Here are a few of the most common questions I receive about NFA (National Firearms Act of 1934) firearms and NFA gun trusts:
If I’m carrying an NFA firearm in Florida, and am stopped by a LEO (law enforcement officer), what do I need to produce to prove that I legally possess that item?
Technically, you have no obligation to prove ownership to a police officer, sheriff, deputy, or FWC officer. Only the ATF and perhaps the IRS have the legal authority to demand to see your tax stamp. But, unless you potentially want to spend a night in jail, common sense dictates that you produce a copy of your tax stamp. That’s all that’s required. You don’t have to carry around a copy of your trust. (Although, I do have several clients who store a copy of their trust and their tax stamps in the cloud so they can access them if absolutely necessary). Keep your original tax stamps somewhere safe, put a copy in your binder, and keep a copy with the weapon AT ALL TIMES.
I’m at a range with friends and my NFA regulated weapons are present. Can my friends legally handle and fire those items?
As long as your have your tax stamp in your possession and the weapons are within a few feet of you, you can share away. This is true whether your NFA weapons are in a trust or not. However, if none of those people are named as current trustees in your NFA firearm trust document, the law is strict – within your presence means within your presence. As long as those NFA weapons are where someone who isn’t legally authorized can touch them, you can’t leave the immediate area to go to the bathroom, buy more ammo, or grab something from your car.
I have a friend who I know is a responsible non-NFA gun owner. He’d like to use one of the NFA regulated firearms in my trust for an afternoon at the range when I cannot attend. My brother has also asked me whether he can take it on a hunting trip if I’m not with him. Can I let them borrow an NFA firearm that’s in my trust?
It depends on how your NFA firearm trust document is written. Some are written to allow the Grantor/Trustee (you) to appoint a temporary special trustee and lifetime beneficiary. This person can possess and use the trust property for a certain period of time while you’re still alive, but has no power to sell or otherwise transfer the property and has no power over the trust document. Other trusts make no provisions for a special trustee. Consult with the attorney who drafted your gun trust to see if it’s allowed and what you’d have to do to make it legal.
Of course, NFA firearms that are owned by individuals – not trusts – can never be loaned to anyone who isn’t a couple of feet away from the registered owner.
What are the legal risks to the trust and to me if there is a mishap involving a NFA weapon?
Most NFA firearm trusts are revocable living trusts, which means the trust provides absolutely no liability protection to you or anyone using any of the guns – NFA firearm or not. If you loaned the firearm to someone else, you’ll probably be sued. To protect yourself, do your due diligence and make sure the person you loan any weapon to isn’t a criminal and doesn’t have a history of carelessness, drug or alcohol abuse (remember – medical and recreational marijuana users are prohibited from possessing any guns), anger issues, domestic violence, etc).
Medical marijuana and gun laws don’t play well together.
Medical marijuana has been legal in Florida for a while. First we had a statute that allowed terminally ill people to use a non-smoked, low-THC form of Mary Jane. Then on November 8, 2016, Florida voters approved a constitutional amendment (effective July 1, 2017) that extended the use of medical marijuana to people with “debilitating illnesses,” such as glaucoma, HIV, AIDS, PTSD, ALS, Crohn’s disease, Parkinson’s disease, multiple sclerosis, and other illnesses and conditions. That’s a lot of people who are now able to use medical marijuana to ease their symptoms.
In addition, some Florida cities such as Miami Beach and Tampa, have decriminalized the possession of a small amount of illegal weed, making it a civil offense rather than a criminal offense.
But what few people are talking about is how using recreational or medical marijuana and gun laws affect each other.
Florida can pass all the pro-marijuana laws it wants, but pot’s still a Schedule I controlled substance under Federal law – and Federal law trumps state law when it comes to drugs. And guns.
So, I’ll make this easy for you. Marijuana use = no gun possession. Period. End of discussion. It doesn’t matter what the state says. And here’s why…
The federal law governing who can and cannot possess and own firearms (18 U.S.C. § 922(g)(3)) prohibits possession or ownership by a person who is “… an unlawful user of or addicted to any controlled substance (as defined in section 802 of the Controlled Substances Act (21 U.S.C. 802)).” We’re talking about the unlawful user here – which means either 1) the user of an illegal controlled drug, or 2) the wrongful user of a legal controlled drug (i.e. taking legal drugs prescribed for someone else).
The Controlled Substances Act (1970) divides drugs into five Schedules depending on the drug’s perceived usefulness for medical reasons and its addictiveness. Marijuana is a Schedule I controlled substance – along with heroin, LSD, peyote, mescaline, etc. All Schedule I drugs are illegal to prescribe and use under federal law. (Doctors who write prescriptions for these drugs can lose their DEA license; so, in states where medical marijuana is allowed, they generally merely “recommend” it instead).
So, if you use medical marijuana, you are automatically an unlawful user of a controlled substance and cannot possess, use, buy, sell, gift, or otherwise transfer firearms. You are now a prohibited person under federal law (18 U.S.C. § 922(g)(3). The mere possession of a firearm by a prohibited person is a crime, and you MUST disclose your illegal drug use on ATF Form 4473 when you buy, sell, or otherwise transfer a gun through a FFL. Failure to disclose your use of marijuana (medical or otherwise) is a federal felony. In a private transaction, if the seller knows or has reasonable cause to believe the buyer uses marijuana (medical or otherwise) the transaction cannot be completed without both parties committing a felony (18 U.S.C 922(d)).
- If you own an NFA weapon in your individual name, such as a silencer or SBR, it becomes contraband as soon as that recommendation letter, medical marijuana card, or ticket for illegal pot possession is issued.
- If you own an NFA weapon in a gun trust, you can no longer be a trustee or lifetime beneficiary of that trust (you might be able to be a death beneficiary of someone else’s gun trust if appropriate language is added to the trust to prevent possession by a prohibited person).
- As a prohibited person, you cannot have control of any firearms if you’re the personal representative (executor) or trustee of someone else estate or trust – which means you can’t legally sell the guns.
- If your spouse or child is taking medical marijuana, he or she cannot have access to any of your weapons or know your safe combination. All your estate planning documents should be reviewed to ensure that any such prohibited persons are removed from certain roles or additional language is added to prevent an accidental felonies.
I know some of you are reading this and thinking, “This is just stupid. People who need medical marijuana won’t care about their gun rights.” Some may not, but some may. This won’t affect just terminally ill people any more.
Or you might be thinking, “I’ve smoked/I know people who have smoked pot for years and I/they still own guns. No one’s going to catch me.” Maybe, maybe not. I’m just educating you on the law – following it or breaking it is always your choice. Do you know for sure that state-issued medical marijuana cards or tickets for pot possession won’t ever be submitted to the NICS background check system? Do you trust your government to protect your individual Second Amendment rights? Are you aware of what’s been happening to the right to self-defense for certain veterans and the disabled?
Here’s the letter the ATF sent to all FFLs back in 2011 when states first started “legalizing” medical marijuana. Pretty cut and dried, and no newer guidance has been issued. The fact is that until ganja is removed from Schedule I, it’s an illegal drug under federal law.
If you’re a Florida gun owner and anyone in your immediate family is unfortunate enough to need medical marijuana, please be sure to plan ahead before obtaining that card.
If you’re wondering how medical marijuana affects your Florida concealed carry license, see this article.
“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.
On July 13, 2016, the ATF changed the Rules that had been in place for decades regarding the transfers of NFA/Title II weapons. The new Rules eliminated the requirement that a chief law enforcement officer (CLEO) sign off on an individual’s ATF application before it could be submitted to the ATF. Many people saw that as a win, as it makes it much easier to buy or sell NFA weapons without a gun trust. But things aren’t always as cut and dried as they seem.
NFA and gun trusts before July 13, 2016
Since most CLEOs in Florida wouldn’t sign off on the ATF application, individuals who wished to transfer an NFA weapon created gun trusts to legally bypass that requirement. While using a gun trust expedited the transfer of NFA weapons, it didn’t allow prohibited persons to access such weapons since NICS instant background checks were still done before the weapon left the dealer’s store. Also, the trustee was legally responsible for making sure all persons associated with the trust (grantor, trustees, beneficiaries) were not prohibited by federal or state laws from possessing firearms.
NFA and gun trusts now
Today, an individual can transfer an NFA weapon by completing the ATF application, submitting a copy by mail to her CLEO (although Florida has a law prohibiting government officials from creating lists of any sort pertaining to gun ownership), and then submitting the ATF application, fingerprint cards, and a passport photo to the ATF.
A trustee of a gun trust must complete the ATF application, but will also need to have every “Responsible Person” associated with the trust complete a new ATF form. The trustee must submit a copy of all the ATF forms by mail to her CLEO, and then submit a copy of the entire gun trust, all that ATF paperwork, PLUS fingerprint cards and passport photos for every Responsible Person to the ATF.
Whoa! That’s potentially a lot of paperwork, time, and money.
Why a gun trust is still valuable
So, you’re probably thinking, “Hell, it’ll be easier to just buy a suppressor as an individual. Forget the trust.” Yes, in some cases, it may be appropriate. If you can say “yes” to every one of the following, you may want to buy, sell, or manufacture as an individual:
- I would never allow my spouse, a friend or other family member to use my suppressor or other NFA weapon without me being right next to them (illegal possession = felony).
- No one except me has access to the gun safe where I store the NFA weapons I own as an individual – that includes my spouse and adult children (illegal constructive possession = felony).
- My spouse or significant live-in other will never need to use my suppressed weapon for self-defense when I’m not home (illegal possession = felony).
- I have a current, valid Durable Power of Attorney, and all of my named Agents can recognize which of my weapons are highly-regulated NFA weapons and which ones aren’t, and will know what to do with them if I become incapacitated (illegal possession= felony, contraband weapons confiscated by ATF).
- Or, if I don’t have a current, valid Durable Power of Attorney, I understand that if I become incapacitated, someone will have to go to court ($$) to be named my guardian so my NFA weapons can be legally transferred or sold.
- I have a current, valid Will, and all of my named Personal Representatives can recognize which of my weapons are highly-regulated NFA weapons and which ones aren’t, and will know how to legally transfer them when I die (illegal possession = felony, contraband weapons confiscated by ATF).
- Or, if I don’t have a current, valid Will, I understand that a judge will name a Personal Representative to handle my estate, in accordance with Florida law: spouse, then children, then parents, then siblings, etc. All of these people can recognize which of my weapons are highly-regulated NFA weapons and which ones aren’t, and will know how to legally transfer them when I die (illegal possession = felony, contraband weapons confiscated by ATF).
- I am not a veteran, so there’s no chance that the VA could someday unilaterally decide that I’m not capable of handling my finances and assign me VA Fiduciary (automatic addition to NICS database as a mental defective = prohibited person = illegal possession = felony; contraband weapons confiscated by ATF).
- I will not use medical marijuana as long as it’s federally regulated under the Controlled Substances Act (illegal drug use = prohibited person = illegal possession = felony; contraband weapons confiscated by ATF).
- I understand that any NFA weapons I own as an individual will be subject to probate ($$), and will be distributed under the terms of my valid Will, or, if I have no valid Will, per Florida law.
- I have no concerns about privacy when I die. I understand that my Will – which may designate who will receive certain weapons – shall become a public court record and will be available to virtually anyone.
- I have complete faith that the Supreme Court and politicians will continue to defend my constitutional right to own guns.
Okay, I threw that last one in there for fun – none of us believe that!
But if you can’t say “yes” to the other items on the list, consider speaking with a gun trust attorney. And if you currently have just a basic $100 NFA gun trust, consider upgrading it as it may not offer all the protection you need.
Gun trusts can be valuable estate planning tools, and there are ways a knowledgeable trust attorney can draft gun trusts to maximize sharing, privacy, and control while minimizing the onerous requirements of the new Rules. Gun trusts can include all your weapons or only your NFA weapons. They may help keep your guns in your family’s hands when things go terribly wrong for you (incapacity, legal problems, death, etc.). They can be revocable or irrevocable, depending on your situation. They can end at your death or continue for generations.
Your gun trust – just like the rest of your estate plan – should fit your particular needs just as your favorite holster fits your carry gun.
Other articles you may find interesting:
Last night, while most of the media were sleeping, the ATF changed NFA rules that have been in force since 1934, and issued its final ruling on its proposal (41-P) to close the so-called “gun trust loophole.”
As originally proposed, the ATF would make transfers (purchases and sales) of National Firearms Act (NFA) weapons by trusts and corporations subject to the same archaic rules that burden individuals – namely CLEO certification, FBI fingerprints, and passport-type photos. Currently, the trustee or corporate officer preparing the paperwork and picking up the weapon is subject to a NICS background check – like any other gun buyer – and is held legally responsible under hefty federal penalties for ensuring that no prohibited person has access to the weapon.
I haven’t had time to digest the entire 240+ page ruling yet, but it appears the ATF backed away from requiring CLEO certification for trusts and corporations, and instead will require CLEO “notification” as well as fingerprints, photos, and NICS background check of all persons having control of the weapons. Generally, for trusts, that would be the trustees but may also include some beneficiaries.
This change will become effective in about 6 months.
As I currently understand it, if this ruling stands, neither individuals nor trusts will need CLEO certification (CLEO approval) before they can buy a suppressor or SBR. Instead, the CLEO must be “notified” that a transfer is taking place. And, it appears that all trustees will have to submit fingerprints and photos, and be physically present for the NICS background check.
This appears to be an unconstitutional overreach by the Obama administration, and pro-Second Amendment legal organizations are already preparing for battle. Be sure to support them to preserve your rights.
I’ll be reviewing the ruling in more depth and consulting with other gun trust lawyers to see how this may play out with existing and new gun trusts and will keep you posted.