While most people using marijuana in states that have legalized it don’t have to worry about federal prosecution, it’s a different story for gun owners.
As of December 1, 2018, after years of attempting to persuade our state legislature to recognize the need for medical marijuana to be made available for patients, Utah’s medical marijuana initiative went into effect. Conner Boyack and Libertas Institute tirelessly spearheaded the charge to accomplish what the legislature would not do, and now, according to Boyack, “patients can begin safely using medical cannabis, knowing they are legally protected in doing so.”
But are they all really completely protected?
While marijuana is legal in some form in 33 states and Washington, D.C. and state action has nullified in effect federal prohibition, the feds refuse to relinquish their stranglehold on marijuana.
Despite widespread use and acceptance of marijuana across the country, 21 United States Code Section 811 sets forth provisions of the Controlled Substances Act (CSA). Pursuant to federal law, marijuana is considered a Schedule One drug, in a class with substances such as cocaine, heroin and LSD.
Nowhere in the Constitution can one find the authority for Congress to regulate any controlled substance. Nor can one find the authority to regulate firearms; further, the Second Amendment was added to instill confidence in the people that the general government would not regulate firearms at all. Why am I raising the issue of firearms? I seem to be the only one raising this issue, but I advise those who may need or have a family member in need of medical marijuana to fully understand the federal government’s views on the matter. I refer you to the Bureau of Alcohol, Tobacco, Firearms and Explosives open letter to all Federal Firearms Licensees, henceforth “FFL.” I will sum up their position: if you are lawfully using marijuana, medical or otherwise, the feds say you may not purchase a firearm OR ammunition. Period. Case closed.
If you purchase a firearm from an FFL, you will be presented with the Firearms Transaction Record form 4473, which you must, under penalty of perjury, answer fully and truthfully. You may see it for yourself HERE.
Question 11(c) asks prospective gun purchasers if they are unlawfully using any controlled substances. You think, “Hey, I can answer ‘no,’ as marijuana is now legal in my state. Immediately following the inquiry is the following admonition (in bold letters):
“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.”
Not surprisingly, in 2016, the U.S. Ninth Circuit Court of appeals ruled that this restriction does not violate the Second Amendment.
Here in Utah, one has the option to legally purchase a firearm privately, as opposed to doing so through an FFL. That being said, you are still breaking federal law if you are a patient using medical marijuana, or even providing to a suffering patient, as possession will disqualify anyone from such a purchase. So our choices are: seek relief and relinquish firearms rights; become a law-breaker, or continue to suffer.
Thus far, there are no assurances that Utah would protect its suffering citizens from federal overreach, as happened in California: I refer you to Gonzales v. Raich, where the Supreme Court upheld federal law prohibiting the growth and personal use of marijuana, even if legal pursuant to state law. Angel Raich was legally using medical marijuana pursuant to California law, passed under Proposition 215.
Mr. Boyack informed me that this new law will not affect those with Concealed Carry Weapons permits (CCWs) at all. From the perspective of the State of Utah, he may be correct – for now. But remember, anyone seeking a permit will be subject to a background check by the Department of Justice, and we already know medical records are accessible to the federal government. I anticipate them being denied in the future on this basis. There is already a precedent for this in Hawaii.
And what about guns we already have?
In December of 2017, the State of Hawaii demanded those with the medical marijuana cards turn in their guns. As Utah’s demographics change, so will the nature of its elected officials, and there is nothing to say that eventually the same couldn’t happen here.
Why is this blatant and consistent federal overreach tolerated? Unfortunately, people still consider federal law to be supreme, this due to a misinterpretation of the Supremacy Clause, found in Article VI, Clause 2. It reads, in relevant part, as follows:
“This Constitution, and the Laws of the United States which shall be made in pursuance thereof…shall be the supreme law of the land…” (Emphasis added)
So, according to the plain text of the Supremacy Clause, federal marijuana and firearm laws must be made in pursuance to the Constitution – meaning, the States must have delegated the power to regulate them both. They did no such thing. Accordingly, the Tenth Amendment thus becomes operative:
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
My point here is this: if you are a firearms owner seeking relief via medical marijuana you are violating federal law. The federal law is in direct violation of the Tenth Amendment. I have seen no states thus far willing to protect their citizens from exercising their lawful rights. If you are supplying medical marijuana to someone who is ill and has a card, you are violating federal law. Your transactions will be recorded and may be used against you at any given time.
De facto nullification is just the first step; ultimately, it is up to the states to interpose in federal overreach of both firearms and marijuana. To do so would be entirely consistent with the purpose and intent of the Constitution.