united-states criminal-law medical-marijuana second-amendment federalism
Can getting medical marijuana prescribed prevent you from owning or buying a firearm?
<p>The federal law governing possession and ownership of firearms is <a href="https://www.law.cornell.edu/uscode/text/18/922" rel="nofollow noreferrer">18 U.S.C. § 922(g)(3)</a>. This prohibits possession or ownership by a person who is “…<strong>an unlawful user</strong> of or addicted to any controlled substance (as defined in section 802 of the Controlled Substances Act <a href="https://www.deadiversion.usdoj.gov/21cfr/21usc/802.htm" rel="nofollow noreferrer">21 U.S.C. 802</a>).”</p>

<p>So an unlawful user is;</p>

<ul>
<li><p>the user of an illegal controlled drug</p></li>
<li><p>the wrongful user of a legal controlled drug</p></li>
</ul>

<p>Under the Controlled Substance Act, all Schedule I drugs are illegal to prescribe and use under federal law.</p>

<p>So, if you use medical marijuana prescribed by a doctor. Are you automatically an unlawful user of a controlled substance and cannot possess, use, buy, sell, gift, or transfer firearms?</p>

<h1>Short Answer</h1>
<blockquote>
<p>if you use medical marijuana prescribed by a doctor. Are you
automatically an unlawful user of a controlled substance and cannot
possess, use, buy, sell, gift, or transfer firearms?</p>
</blockquote>
<p>Basically yes. If you use medical marijuana prescribed by a doctor on a regular basis you are a prohibited person pursuant to 18 U.S.C. 922(g)(3), and you are therefore subject to severe federal penalties for possessing, using, buying, selling, giving and transferring firearms (although case law has held that if, for example, you inherit a firearm, you can promptly negotiate its sale to a third party to divest yourself of ownership of it through a third party broker if you do not use the firearm or possess it; the statute is not intended to operate as a property forfeiture law).</p>
<h1>Long Answer</h1>
<p>Not many cases address this question. One of the leading cases is <em>U.S. v. Bennett</em> (10th Cir. 2003). It held that is someone is a regular user of illegal drugs at the time of the offense then that person is a prohibited person, even if he was not under the influence at the moment of offense. In an analysis that really needs to be quoted at length (some case law citations omitted) to capture exactly what was held:</p>
<blockquote>
<p>The sentencing guidelines define a “prohibited person” in relevant
part as a person “who is an unlawful user of or addicted to any
controlled substance” under 18 U.S.C. § 922(g)(3). See U.S.S.G. §
2K2.1, cmt. n. 6. The statute does not define the phrases “unlawful
user of ... any controlled substance” or “addicted to any controlled
substance.” It does, however, define “addict” as an “individual who
habitually uses any narcotic drug so as to endanger the public morals,
health, safety, or welfare, or who is so far addicted to the use of
narcotic drugs as to have lost the power of self-control with
reference to his addiction.” 21 U.S.C. § 802(1). Mr. Bennett believes
the district court erred in not defining the language “unlawful user
of ... any controlled substance” the same as “addicted to any
controlled substance.” He argues he is not an “addict,” as defined
under 21 U.S.C. § 802(1), because he used methamphetamine and
marijuana rather than narcotic drugs. Mr. Bennett's argument
presupposes the definition of the word “addict” under 21 U.S.C. §
802(1) is synonymous with the phrase “addicted to any controlled
substance” under 18 U.S.C. § 922(g)(3). We need not consider whether
this presumption is correct because we conclude, whatever the precise
meaning of the phrase “addicted to any controlled substance,” its
meaning is distinct from the meaning of the phrase “unlawful user of
... any controlled substance.” The words “unlawful user of or addicted
to any controlled substance” are written in the disjunctive, implying
each has a separate meaning. See Reiter v. Sonotone Corp., 442 U.S.
330, 339, 99 S.Ct. 2326, 60 L.Ed.2d 931 (1979) (“Cannons of
construction ordinarily suggest that terms connected by a disjunctive
be given separate meanings, unless the context dictates otherwise;
here it does not.”). Even Mr. Bennett agrees the statute “breaks down
a prohibited person into two groups: a. User, or b. Addicted.” We
therefore conclude the district court did not err in defining the
phrase “unlawful user of ... any controlled substance” differently
from the phrase “addicted to any controlled substance.”</p>
<p>In a related argument, Mr. Bennett argues he is not a “prohibited
person” because he passed all drug tests while on bond. He claims this
evidence demonstrates he was not an “addict” because “he definitely
didn't lose the power of self-control.” We have already concluded the
phrase “addicted to any controlled substance” is distinct in meaning
from the phrase “unlawful user of ... any controlled substance.” The
government only argues that Mr. Bennett was an unlawful user of a
controlled substance. In any event, although Mr. Bennett did not fail
any drug tests while on bond, we conclude the district court properly
held him to be a “prohibited person.”</p>
<p>The guidelines do not require a person to be an unlawful user of a
controlled substance while on bond in order to qualify as a prohibited
person. An individual's status as a prohibited person is measured “at
the time the defendant committed the instant offense.” U.S.S.G. §
2K2.1(a)(4)(B). While a court may use evidence of a defendant's
unlawful use of drugs while on bond to infer he was a user at the time
he possessed a firearm, see Solomon, 95 F.3d at 35, such evidence is
not necessary. The government need only show the defendant was an
unlawful user of drugs or addicted to drugs at the time he committed
the offense. See U.S.S.G. § 2K2.1(a)(4)(B); 18 U.S.C. § 922(g)(3). In
other words, the government must show a defendant's drug use was
contemporaneous with his firearm possession. After reviewing the
evidence, discussed in detail below, we are convinced the government
met its burden in this case.</p>
<p>As mentioned previously, the government believes Mr. Bennett's
extensive drug history qualifies him as an “unlawful user” of a
controlled substance. Mr. Bennett does not dispute he used controlled
substances. Instead, he argues the sentencing guidelines are
unconstitutionally vague because the phrase “unlawful user” in 18
U.S.C. § 922(g)(3), adopted by the guidelines in U.S.S.G. § 2K2.1,
cmt. n. 6, “is capable of being understood by reasonably well-informed
persons in two or more different ways.”</p>
<p>A criminal provision “must explicitly convey what it outlaws.” A
provision that “either forbids or requires the doing of an act in
terms so vague that men of common intelligence must necessarily guess
at its meaning and differ as to its application violates the first
essential of due process of law.' ”. Where, as here, a vagueness
challenge does not involve First Amendment freedoms, we examine
whether the provision is impermissibly vague “in the light of the
facts of the case at hand.” We conclude the sentencing guidelines are
not unconstitutionally vague as applied to Mr. Bennett's conduct.</p>
<p>A confidential informant told police Mr. Bennett was distributing
methamphetamine. Upon searching Mr. Bennett's residence, the police
found “a digital scale with white powder residue, [a] small baggie of
suspected marijuana, numerous marijuana pipes and bongs, possible drug
ledgers, assorted small containers containing white powder residue,
small plastic bindles, and suspected marijuana seeds.” The police also
found a small amount of marijuana on Mr. Bennett's person. Mr. Bennett
admitted during an interview with police he used, purchased, and sold
methamphetamine. Mr. Bennett also admitted to a probation officer he
used marijuana and methamphetamine on a daily basis up until his
arrest. As a result of the police investigation, Mr. Bennett pled
guilty to two misdemeanor charges of possession of a controlled
substance, i.e., marijuana and methamphetamine.</p>
<p>Based on this evidence, we conclude the district court correctly found
Mr. Bennett was a “prohibited person” under the guidelines. His
regular and ongoing use of marijuana and methamphetamine during the
same time period as his firearm possession qualifies him as a
“unlawful user of ... a [ ] controlled substance” and therefore a
“prohibited person.” The guidelines are not vague under the facts of
this case.</p>
</blockquote>
<p><em>U.S. v. Bennett</em>, 329 F.3d 769, 776–78 (10th Cir. 2003).</p>
<p>A subsequent trial court decision from the District of Utah further
elaborated on the standard set forth in <em>Bennett</em> considering rulings from the 5th and 9th Circuits as well:</p>
<blockquote>
<p>Mr. Grover refers this court to a decision by a three-judge panel of
the Fifth Circuit in <em>United States v. Herrera</em>, which was
subsequently vacated by an en banc panel of the court. The decision of
the original panel is the only federal decision to expressly reach a
definition of “unlawful user.” After analyzing the text, structure,
and legislative history of § 922(g)(3), as well as the relevant case
law, the court held:</p>
<p>an ‘unlawful user’ is one who uses narcotics so frequently and in such
quantities as to lose the power of self control and thereby pose a
danger to the public morals, health, safety, or welfare. In other
words, an ‘unlawful user’ is someone whose use of narcotics falls just
short of addiction, as that term is defined by the Controlled
Substances Act.</p>
<p>Although the original <em>Herrera</em> court did not arrive at its conclusion
by interpreting the phrase “unlawful user of” to be synonymous with
“addicted to” (this was the argument of the dissenting judges on the
en banc panel that subsequently vacated the decision of the
three-judge panel), the end result is essentially the same. The panel
did not define the meaning of use that “falls just short of
addiction.” Thus, in asking this court to adopt the definition
announced by the original <em>Herrera</em> panel, Mr. Grover is asking this
court to equate the definition of “unlawful user,” as used in 18
U.S.C. § 922(g)(3), with the definition of “addict” in 21 U.S.C. §
802(1). For the reasons stated above, this court declines to equate
the definition of “unlawful user,” as used in § 922(g)(3), with the
definition of “addict” in 21 U.S.C. § 802(1). Furthermore, this court
expresses serious doubt that any precedential weight may be accorded
to the original panel decision in <em>Herrera</em>. <strong>Although the en banc
majority did not expressly reverse the original panel's holding, it
decided whether the defendant was an “unlawful user” only by asking
whether “drug use [occurred] with regularity and over an extended
period of time.”</strong> The majority never discussed the definition reached
by the original panel, which roughly equated the definition of an
“unlawful user” with that of an “addict,” requiring the additional
element of loss of self-control.</p>
<p>In sum, the phrase “unlawful user of or addicted to any controlled
substance,” as used in 18 U.S.C. § 922(g)(3), may be interpreted as
either joining separately definable or synonymous terms. The Tenth
Circuit in <em>Bennett</em> clearly ruled that the phrase is written
disjunctively, meaning that the phrases “unlawful user of” and
“addicted to” have separate meanings, and are therefore not
synonymous. This conclusion is consistent with the common, everyday
meaning of the terms—a person may be a user of controlled substances
without being addicted to them, and conversely, a person may be
addicted to controlled substances even when no longer a user of them.</p>
<p>Although <em>Bennett</em> did not expressly define the phrase “unlawful user
of,” it did explain that the defendant's “regular and ongoing use of
marijuana and methamphetamine during the same time period as his
firearm possession qualifies him as an ‘unlawful user of ... a[ ]
controlled substance’ ....” Consistent with the Ninth Circuit's
decision in <em>United States v. Purdy</em>, <em>Bennett</em> impliedly defined
three elements for qualification as an unlawful user of a controlled
substance: (1) regular use of any controlled substance (or, in the
words of <em>Purdy</em>, “[use of] drugs with regularity”); (2) on an ongoing
basis (or, in the words of <em>Purdy</em>, “over an extended period of
time”23); and (3) during the same time period as (or, in the words of
<em>Purdy</em>, “contemporaneously with”) the possession of a firearm. Combining language from both <em>Bennett</em> and <em>Purdy</em>, this court holds
that <strong>an unlawful user of any controlled substance, for purposes of
18 U.S.C. § 922(g)(3), is an individual who regularly and unlawfully
uses any controlled substance over an extended period of time that is
contemporaneous with the possession of a firearm.</strong></p>
</blockquote>
<p><em>U.S. v. Grover</em>, 364 F. Supp. 2d 1298, 1302–03 (D. Utah 2005).</p>
<p>On the other hand, evidence of a single use of marijuana six hours before the arrest with a firearm was not sufficient to show that someone was a controlled substance user, as this could have been &quot;an isolated occurrence.&quot; <em>U.S. v. Augustin</em>, 376 F.3d 135 (3rd Cir. 2004).</p>
<p>In general, evidence that one has a medical prescription for marijuana would tend to show that one is a &quot;controlled substance user&quot; and hence a prohibited person with respect to firearms.</p>
<p>The only real out in this case would be the Congressional appropriations bill prohibiting the expenditure of federal funds to prosecute people who are using marijuana in a manner that is legal under state law and related U.S. Attorney statements to that effect. But, it is not at all obvious that these protections extent to prosecutions under 18 U.S.C. § 922(g)(3).</p>
<p>The case closest to addressing the question of whether someone was prosecuted under 18 U.S.C. § 922(g)(3) for possessing a firearm while regularly using marijuana on a basis that was legal under state law, considering among other things, a Second Amendment challenge, is <em>Wilson v. Lynch</em>, 835 F.3d 1083 (9th Cir. 2016), <em>certiorari denied</em> 137 S.Ct. 1396, 197 L.Ed.2d 555.</p>
<p>The 9th Circuit in <em>Wilson v. Lynch</em> held that the provision of federal Gun Control Act prohibiting sales of firearms to individuals whom sellers had reasonable cause to believe were drug users, and the accompanying regulation and administrative policy effectively criminalizing the possession of a firearm by the holder of a state marijuana registry card (in Nevada) did not violate the Second Amendment. The 9th Circuit reached this conclusion because the government had a substantial interest in preventing gun violence, and because empirical data and other evidence supported strong link between drug use and the risk of irrational or unpredictable behavior, including gun violence. Therefore, the 9th Circuit held that it was reasonable for federal regulators to assume that registry cardholder was more likely to use marijuana that an individual who did not hold such a card.  </p>
<p>In sum, it is safe to assume that someone with a medical marijuana prescription that is legal under state law is still a &quot;prohibited person&quot; pursuant to 18 U.S.C. § 922(g)(3) and is subject to severe penalties for possessing a firearm.  </p>
