As cannabis legalization hits major milestones in New York, state residents will soon enjoy increased access to legal marijuana; but in doing so, they could decrease their access to legally possess firearms.
The state Office of Cannabis Management this week generated excitement among weed users and legalization proponents when it approved conditional dispensary licenses for nearly 40 businesses. But some advocates are concerned with federal and state laws preventing medical patients and adult-use customers from exercising their Second Amendment right to legally own a gun.
“This is an ongoing issue because of the federal illegality of cannabis, in that it’s a Schedule 1 substance,” said Michelle Fields, an attorney and advisor to The Mary Jane Consulting Group, and a board member of the New York City Cannabis Industry Association.
Controversy over gun license screening processes that prevent cannabis users from legally possessing firearms isn’t unique to New York. In fact, effective bans on medical cannabis patients largely stem from a memo from the federal Bureau of Alcohol, Tobacco, Firearms and Explosives.
ATF released that memo in 2011 when 17 states had legalized medicinal cannabis and many more were considering establishing medical programs. It says that after receiving many inquiries, the bureau reached the conclusion that because marijuana is a federally illegal drug, federal firearms laws bar medical cannabis patients from legally owning guns.
“Any 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,” the memo reads.
The federal Ninth Circuit Court of Appeals essentially affirmed the memo in 2016 when it ruled against a Nevada-based plaintiff who argued that rules preventing her from obtaining firearms because of her status as a medical cannabis patient violates her Second Amendment rights.
Medical cannabis patients have been denied firearms for years, Fields said, because most states share data on which residents hold medical marijuana cards with officials at agencies that vet gun license applicants – including police departments.
Some jurisdictions in New York go further. For example, the Nassau County Police Department requires a 12-panel drug test – which includes THC – for all concealed carry license applicants.
NY Cannabis Insider asked a Nassau County spokesperson whether a positive THC test would prevent an applicant from receiving a concealed carry license, and will update this story when we receive a response.
Scheril Murray Powell, an attorney and chief operating officer at the nonprofit JUSTĂśS Foundation, said concerns around Second Amendment rights for cannabis users have emerged in several states that legalized marijuana in recent years, and believes regulations that test gun license applicants are archaic and outdated.
However, even though rules against cannabis users accessing firearms exist, Murray Powell said she hasn’t seen many cases in which they were strictly enforced.
“There’s a lot of fear around it, but I have yet to see a case in which someone was denied marijuana access because they were a gun holder, or denied a firearm because they were a medical marijuana user,” Murray Powell said.
Sign up for the NY Cannabis Insider newsletter
But the issue of treating cannabis users differently than other gun license applicants is part of a broader problem of governments and law enforcement agencies regarding weed as a threat to public safety, she said.
For example, truck drivers and others with a commercial drivers license cannot maintain that license if they are a registered medical cannabis patient, Murray Powell said. Additionally, CDL license holders must submit to drug screenings, and can lose their ability to drive commercial vehicles if they test positive – which is possible if they’ve used within the past 90 days.
“It’s unfair for cannabis to be treated and discriminated against and evaluated as far as risk in a different way than the other counterparts in medicinal pain relief such as pharmaceuticals … and alcohol,” Murray Powell said.
Fields, the attorney and advisor to The Mary Jane Consulting Group, said she knows of many people in New York who opt not to join the state’s medical cannabis program because they don’t want to lose their firearms licenses. These people are largely retired military and law enforcement professionals who would like to treat ailments with medical cannabis, but don’t want to give up their guns.
New York could pass legislation to close the state database of medical cannabis patients to everyone other than health care professionals, Fields said. States including Michigan, Missouri, Ohio, Oregon and Pennsylvania have already taken such action, she said.
But if legislators don’t take up the issue in the 2023 legislative session, Fields thinks regulators should clarify New York’s rules regarding cannabis use and gun licensing sooner rather than later.
“I think New York really needs to have some clear guidance,” Fields said.
Be the first to comment