State authorities in Pennsylvania faced a sticky policy decision recently, and one that every state has had to deal with one way or another in the road to legalizing medicinal or recreational use of cannabis. Specifically, the regulators in charge of the state’s cannabis policies have had to reconcile their medical marijuana program with a federal prohibition on cannabis consumers owning guns.
In 2016, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) released their forms for gun purchases, with the section on marijuana use in a bold font. The section was a yes or no question on form 4473: “Are you an unlawful user of, or addicted to marijuana, or any depressant, stimulant, narcotic drug or any other controlled substance?
Warning: the use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medicinal or recreational purposes in the state where you reside.” The federal standpoint is that cannabis consumers cannot own guns or ammunition, period.
Of course, the federal government still holds the position that cannabis consumption or possession is flat out illegal, and state markets thrive all the same. So like all the compromises that allow state programs to exist, it relies on an uneasy truce. Becky Dansky is the legislative counsel of the pro-legalization advocacy group, the Marijuana Policy Project, and according to her, it’s been a tricky subject just recently in the New England states negotiating legalization.
“The compromise most of those states are reaching is ‘no new guns for patients’, she said. “But they’re not tracking down guns and asking them to be surrendered.” This don’t-ask-don’t-tell approach has worked thus far, but the legal ambiguity may work in the favor of the black market. Gun owners are forced to choose between lying about their cannabis use or lying about their gun ownership. One way or another some turn to illicit cannabis sellers as an easier source with less paperwork.
In Pennsylvania, Ryan Tarkowski, a spokesman for the State Police suggested that patients investigate surrendering any firearms before joining Pennsylvania’s medical marijuana program. “The Pennsylvania State Police are not in the business of offering legal advice, but it might be a good idea to contact an attorney about how best to dispose of their firearms,” said Tarkowski. “It’s unlawful to keep possession of firearms obtained prior to registering, and if you’re a cardholder, you’ll be flagged.”
Two years ago, the 9th U.S. Circuit Court of Appeals ruled that the federal prohibition on cannabis consumers owning guns does not violate the Second Amendment. However, state law enforcement agencies have largely shied away from enforcing the rules and trying to get the cannabis-consuming populace to turn in their guns.
Even voices that are normally vociferous on questions of legality and gun-ownership have been silent. The National Rifle Association has not taken a position on the question. When the Justice Department was questioned on medical marijuana and gun enforcement, the spokeswoman in question referred reporters to a memo that Attorney General Jeff Sessions wrote to federal prosecutors where it failed to specifically address the issue.
However, there have been occasional flare-ups, such as when a police chief in Hawaii publicized a directive that stated patients had to give up their handguns. The statement was quickly rescinded, and only two people turned in their guns, but the swift attention it drew hints as to how the issue has the potential to become a flashpoint overnight.
Another flare-up may be approaching in Pennsylvania, as John T. Adams, president of the Pennsylvania District Attorneys Association recently suggested that enforcement is a matter of time. “They’re going to have to make a choice,” he said, “they can have their guns or their marijuana, but not both.”
The recent changes to state registries made by Pennsylvania regulators make it less likely that medical marijuana program participants will be flagged by federal gun sales background checks, but it’s a far cry from settling the current state of detente. For that, federal laws would have to be reconciled with state programs, and that’s not coming anytime soon.