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.
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