Do Marijuana Users Lose Their Right to Own a Firearm?

State and federal gun laws prohibit gun ownership by convicted felons, persons convicted of domestic violence, and a long list of other circumstances. But do marijuana users lose their right to own a firearm?

A conviction for simple possession of marijuana in SC is a misdemeanor that carries a maximum penalty of 30 days. It’s a minor conviction that does not impact your right to buy or own a firearm or your right to hold a concealed weapon permit (CWP). Or does it?

Even in marijuana-legal states, state and federal authorities can prevent you from purchasing a firearm, and, in some cases, you could be arrested and charged with unlawful possession of a firearm if you smoke marijuana – whether or not you have a criminal conviction.

How does that work, and when can the government prevent you from owning a firearm even if you have not been convicted of a crime? Do marijuana users lose their right to own a firearm solely because they smoke marijuana?

Medical Marijuana Card Holders are Banned from Owning a Firearm

The Ninth Circuit Court of Appeals held in 2016 that a medical marijuana card holder can be denied their Second Amendment right to own and carry a firearm for self defense.

Why?

Because marijuana users are more likely to be violent, dangerous, or engage in criminal behavior?

Wilson v. Lynch

In the Ninth Circuit case, Wilson v. Lynch, a Nevada resident (Wilson) attempted to purchase a handgun for self defense, but the gun store refused to sell to her because the store owner knew that she was a medical marijuana card holder.

Why did he refuse to sell to her? Because the ATF announced to all federally licensed firearms dealers that any person who uses marijuana is prohibited from owning a firearm:

[A]ny person who uses or is addicted to marijuana, regardless of whether his or her State has passed legislation authorizing marijuana use for medicinal purposes, is an unlawful user of or addicted to a controlled substance, and is prohibited by Federal law from possessing firearms or ammunition. Such persons should answer “yes” to question 11.e. on ATF Form 4473 . . . and you may not transfer firearms or ammunition to them. Further, if you are aware that the potential transferee is in possession of a card authorizing the possession and use of marijuana under State law, then you have “reasonable cause to believe” that the person is an unlawful user of a controlled substance. As such, you may not transfer firearms or ammunition to the person, even if the person answered “no” to question 11.e. on ATF Form 4473.

She filed suit to enforce her Second Amendment right to own a firearm for self defense, but, even though she claimed she did not smoke marijuana and the government did not prove otherwise, the Ninth Circuit found that it was reasonable to deny her right to purchase a gun based solely on the fact that she was held a medical marijuana card.

Not only are marijuana users prohibited from possessing firearms, but a firearms dealer can be charged with a crime for transferring a firearm to a person who smokes marijuana…

Do Marijuana Users Lose Their Right to Own a Firearm in SC?

Wilson v. Lynch is a Ninth Circuit case from Nevada. What about the Fourth Circuit? Do they have appellate opinions on whether marijuana users can own a firearm over here on the East Coast?

Unsurprisingly, the Fourth Circuit has a similar interpretation. The only case I see (there may be others, please let me know in the comments or send me an email if you know of any) is United States v. Carter, a 2012 appeal from a federal conviction under Section 922(g) for possessing a firearm by a person who uses marijuana…

The Fourth Circuit found that marijuana users can be prohibited from possessing firearms, although the case was remanded to allow the government another opportunity to develop the record.

Why?

Apparently, the circuit courts of appeal believe that marijuana users are dangerous criminals and the community must be protected from them:

In this case, as in Masciandaro, the government contends that dangerous and non-law-abiding citizens are categorically excluded from the historical scope of the Anglo-American right to bear arms.

There you have it. Pot smokers are dangerous and non-law-abiding; therefore they do not have a right to bear arms. In fact, the Court compares pot smoking to domestic violence in justifying the ban.

The Court noted that “strict scrutiny” (the highest standard of review for constitutional issues) does not apply because marijuana users are not law-abiding citizens:

While we have noted that the application of strict scrutiny is important to protect the core right of self-defense identified in Heller, see Masciandaro, 638 F.3d at 471, that core right is only enjoyed, as Heller made clear, by “law-abiding, responsible citizens,” Heller, 554 U.S. at 635. But Carter cannot claim to be a law-abiding citizen, and therefore his asserted Second Amendment right cannot be a core right, as we held in Chester, where we concluded that the defendant’s status as a domestic violence misdemeanant rendered his claim “not within the core right identified in Heller.” Chester, 628 F.3d at 682-83. Accordingly, as we did in Chester, we will apply intermediate scrutiny in evaluating Carter’s claim. Id. at 683.

Instead, the Court applied a lower standard of review, “intermediate scrutiny,” and concluded that the government’s interest in protecting the community from pot smokers justifies preventing them from owning firearms:

We readily conclude in this case that the government’s interest in “protecting the community from crime” by keeping guns out of the hands of dangerous persons is an important governmental interest.

As Wilson’s attorney noted, your constitutional right to bear arms is protected even if you are on the “no fly” list because you are a suspected terrorist, but a medical marijuana card is enough to deny your right to own a firearm.

Does SC Law Prohibit Marijuana Users from Owning Firearms?

The federal courts, so far, have found that even legal or medical marijuana users can be prohibited from owning firearms. What about the gun laws in SC?

SC Code Section 16-23-30 lists the persons who can be prevented from purchasing a firearm or prosecuted for possessing one. One of the items on the list is “a habitual drunk or drug addict,” which SC courts will almost certainly interpret as “someone who uses marijuana.”

You may not see yourself as a “drug addict” because you smoke marijuana, and many science-types will agree with you, but… the SC legislature and the SC courts are not that big on science when it comes to marijuana, are they?

Although I have not seen police going around confiscating weapons or charging people with unlawful possession of a firearm based solely on their marijuana use, be aware that it can happen – under both SC and federal gun laws.

Marijuana Defense Lawyer in Charleston, SC

Grant B. Smaldone is a state and federal criminal defense attorney in Charleston, SC who focuses his practice on criminal defense cases including firearms violations, drug crimes, and marijuana possession.

Call now at (843) 808-2100 or use our contact form online to talk to a SC marijuana defense lawyer today.


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