ATF Says No Guns for Medical Marijuana Patients
September 28th, 2011
In a memo
released last week, the US Department of Justice has notified federal
firearms dealers that medical marijuana patients are "addicts" or
"unlawful drug users" who cannot legally own weapons or ammunition. A
medical marijuana registration card is proof enough to deny a weapons
sale, the memo said. That has medical marijuana advocates crying foul,
but national gun rights groups -- not so much. [Update: One national group now has responded; see the statement from Gun Owners of America in the text below.]
memo was authored by Arthur Herbert, Assistant Director for Enforcement
Programs and Services for the Bureau of Alcohol, Tobacco & Firearms
(ATF). Herbert said he wrote the memo after receiving "a number of
inquiries about the use of marijuana for medical purposes, and its
applicability to federal firearms laws."
Herbert cited the section of the federal criminal code that prohibits
anyone who is "an unlawful user of or addicted to any controlled
substance" from possessing firearms. He reminded firearms dealers that
they cannot legally sell guns to people they have reasonable cause to
believe are illegal drug users or addicts and wrote that anyone
presenting a medical marijuana registration card is providing reasonable
cause for the dealer to believe they are illegal drug users or addicts.
Despite the Obama administration's 2009 Justice Department memo famously
vowing not to go after patients and providers in compliance with state
laws, the federal government has never wavered from its stance that,
despite state medical marijuana laws, marijuana remains a Schedule I
"Any person who uses or is addicted to marijuana, regardless of whether
or not his or her state has passed legislation authorizing marijuana use
for medicinal purposes, is an unlawful user of or is addicted to a
controlled substance and is prohibited by federal law from possessing
firearms or ammunition," Herbert wrote.
While the federal gun law is not new, its restatement with specific
reference to medical marijuana patients is, and that has advocates
"This is more evidence of the Obama administration's malfeasance with
regard to medical marijuana," said Dale Gieringer, long-time director of
"They have a real penchant for over-regulation. We've seen it with the
Treasury rules and warnings to banks, we've seen it with the continued
arrests by other federal agencies. What's particularly disturbing is
that this memo comes from a Justice Department that three years ago said
it was going to respect state laws regarding medical marijuana."
"I don't think the feds are going to go after gun dealers selling to
medical marijuana patients, but the important this is that if you use
this medicine your constitutional rights are forfeit," said Morgan Fox,
communications director for the Marijuana Policy Project
"This is just a travesty. Trying to treat medical marijuana patients
like second-class citizens and stripping them of their rights as they
are dealing with illness is just despicable."
"The possession of a firearm could make a medical marijuana patient
vulnerable to additional charges and sentencing if convicted of a
federal marijuana crime, and patients should be aware of that," said
Kris Hermes, spokesman for Americans for Safe Access.
"However, it is not the federal government's place to prevent medical
marijuana patients from owning firearms. Following in the footsteps of
the Justice Department, Veterans Affairs, and Housing and Urban
Development, the ATF memo illustrates how yet another arm of the Obama
Administration has demonized medical marijuana and the patient
community. The ATF memo underscores the need for a comprehensive policy
from the Obama administration that treats medical marijuana as the
public health issue that it is," Hermes concluded.
While medical marijuana supporters have expressed outrage, groups that
can usually be counted on to stand up for Second Amendment rights have
been largely silent. Although the National Shooting Sports Foundation
was the first place outside ATF to post the open letter, it has not
responded to repeated Chronicle requests to comment on the Second
Amendment rights of medical marijuana users. Neither has the National Rifle Association
After this article went to publication, Gun Owners of America
executive director Larry Pratt belatedly replied to our requests for comment.
"ATF seems to be dazed now that their Fast & Furious
accessory-to-murder scheme has come to light," Pratt said. "Their first
blind punch was the demand letter regarding multiple rifle sales in the
four southwest border states. Not only is it a stupid attempt to try to
blame gun stores for what ATF was telling them to do (or doing it
directly themselves), but it is illegal. Now they want FFLs to profile
gun buyers to guess who looks like a marijuana user. Again, they have
no legal authority to ask for such an impossibility. What's not to
One exception is Montana, where both medical marijuana and gun rights
are perennial hot topics. There, patients and firearms enthusiasts seem
to be on the same page.
"It is egregious that people may be sentenced to years in a federal
prison only because they possessed a firearm while using a state-
approved medicine," said Gary Marbut, president of the Montana Shooting Sports Association
"This is making people pretty crazy here in Montana," said Kate Chowela of the Montana Cannabis Industry Association
"This is a gun owning state, hunting is a big part of our tradition, we
have that whole independent frontier thing going on. The government is
rescinding the Second Amendment rights of people who use marijuana for
their medical conditions. We have had the feeling that this was the
policy, but now that we see it in writing for the first time, that
really cements it," she added.
The policy may be cemented, but that doesn't mean the law on Second
Amendment rights for medical marijuana patients is set in stone.
"It's all well and good for a federal agency to tell us what they think
the law is, and that's what ATF has done," said Keith Stroup, founder
and current counsel for NORML
. But there is no federal or state court decision that has held a medical marijuana patient is disqualified from owning a gun."
"This breaks down like Justice Department opinion in general. They say
they have a legal right to deny gun ownership, but they can't force the
states to comply with that; they'll just have to enforce the law
themselves," Fox said. "This is just a restatement of policy; there have
been no court battles over it yet."
There could be one coming. In a case decided in May, Willis v. Winters
the Oregon Supreme Court upheld circuit and appeals court rulings that
the Jackson and Washington county sheriffs could not deny concealed
weapons permits to medical marijuana patients. The Oregon Sheriff's
Association has now petitioned the US Supreme Court, which will consider
whether to take up the appeal in an October 7 conference.
"In the Oregon concealed handgun cases, we argued that medical marijuana
patients are not 'illegal drug users or addict' as that term is used in
federal law, based on the legislative history of the law," explained
attorney Leland Berger, who argued the case."The Oregon sheriffs have
petitioned the US Supreme Court for certiori," Berger said. "I wrote the
court saying that the cases were not certiori worthy and that we waived
a response to the petition unless they asked us to file one."
In the meantime, CANORML's Gieringer had some common sense advice for
patients and dispensary operators. "If you're a medical marijuana
patient, don't mention it when you go buy a gun," recommended Gieringer.
But he had a word of warning for dispensary operators. "I assume the
feds will be ready to use this if they are prosecuting a dispensary and
there were any guns on board," he said.