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Dear Pot Lawyer,

I read that medical cannabis cardholders cannot have guns. Is that right?

Under federal law, that’s correct. Under Oregon law, not so much. But in the event of any conflict between those laws, federal law will prevail. So if you are a medical cannabis cardholder and the feds want to come for your guns, they certainly can.

The Second Amendment famously provides that “the right of the People to keep and bear arms shall not be infringed.” For the most part, courts and lawmakers have interpreted this to mean that people can and should have guns (and ammo) aplenty. There are a few, limited exceptions to that ethos under the federal Gun Control Act (GCA) of 1968. Some exceptions are tight and obvious, like for “a person who is a fugitive from justice” and “a person who has been adjudicated as a mental defective.” Others are loose and problematic, like for “a person who is an unlawful user or who is addicted to a controlled substance.” And that is the exception we are talking about here.

“Marijuana” is a federally controlled substance, and medical cardholders are therefore “unlawful users.” A plain reading of the GCA indicates that cannabis cardholders cannot own guns. Alcohol, by contrast, is not a federally controlled substance, and lawful use is not an issue. In the firearms context, this seems strange: We know that alcohol is involved in a significant portion of gun deaths in this country (mostly suicides). Nevertheless, the prohibition on gun ownership relates to weed but not booze.

In order to be smotheringly clear about this, the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) issued an “Open Letter to All Federal Firearms Licensees” in 2011. The letter emphasized that a gun dealer who sells to someone the dealer knows or has “reasonable cause to believe” is a cannabis user violates federal law. This January, ATF added an explicit warning to its Form 4473, which must be completed by every gun purchaser. That form now asks: “Are you an unlawful user of, or addicted to, marijuana... or any other controlled substance?” If the answer is “yes” the gun dealer risks committing a federal felony by making the sale.

Courts have upheld these controls. Last year, the Ninth Circuit ruled that the GCA embargo on medical cannabis cardholders does not violate anyone’s Second Amendment rights. The court concluded that cannabis has been linked to “irrational or unpredictable behavior.” That seems to make sense with pizza and tacos, but less so with guns. And at the state level, the Oregon Supreme Court held in 2011 that, while a cardholder could not be denied a concealed handgun license under Oregon law, federal law enforcement was inescapable.

So there you have it. There is a lot to worry about with guns in America, but the feds have decided that those fears shouldn’t include irrational or unpredictable cannabis users shooting up the block. You can cross that one off your list of worries, I guess.


Got a question? Email us at potlawyer@portlandmercury.com. And remember that if you have a legal problem, contact a lawyer! Our educational musings cannot be relied upon as specific legal advice.