If you want to save some time, the answer is an unqualified “NO.”
But let the skeptics read on…
Yes, I know what you might have heard differently from somebody’s uncle’s next-door neighbor’s brother-in-law who knows a Medical Marijuana dispensary employee who lives next to a cop, but the correct answer is NO.
In a previous blog I gave the ATF’s (Bureau of Alcohol. Tobacco, Firearms and Explosives) statement on the subject. In summary, the Federal Government sees no medical use for marijuana, so it is illegal by Federal law. As such, a user cannot buy, own, use, possess or touch a gun. FEDERAL LAW GOVERNS (by setting the lowest bar — states can make more stringent laws) WHAT IS LEGAL REGARDING GUN SALES. https://commandperformance.info/medical-marijuana-and-the-atf/
How does Federal Law define these terms? In part: https://codes.findlaw.com/us/title-21-food-and-drugs/21-usc-sect-802.html
“(16) The term “marihuana” means all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin. Such term does not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination.”
“(44) The term “felony drug offense” means an offense that is punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country that prohibits or restricts conduct relating to narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant substances.”
So, what happens when you try to buy a gun? You fill out ATF Form 4473, and one of the questions you have to answer is 11e:
“Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance? Warning: The use of 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.“
What if I just lie? You might get a way with it for a time, until you have to use it at which point every aspect of your personal life will be examined, including the part about the felony of lying to illegally acquire a gun. What if I never use it? You might go for a long time, but this record of your lie is there forever and five years or who-knows-how-long down the road they decide to cross-check lists, you are toast.
So, what if I do not buy through dealer? It remains illegal to purchase. How would they know? They might not, but there sure would be a sting to using your gun lawfully for self-defense and then being arrested for felony possession of a gun by a druggie.
So let’s look at Florida law, where we are located. Our present (hopefully soon-to-be former) Commissioner of the Department of Agriculture and Consumer Affairs (which issues the Florida Concealed Weapons License) bragged prior to taking office that she had a FL CWL AND an MMC (Medical Marijuana Card). Unfortunately for her, she did not read her own department’s Concealed Weapon or Firearm License Preliminary Eligibility Determination (or lied perhaps?). It reads in part: https://licensing.freshfromflorida.com//firearms/prequal_questions.aspx
“25.
Are you an unlawful user of, or addicted to, any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)?
If you answer “yes”, here’s the automated response you get:
“Based upon your answers, you may not qualify for the following reasons:
You answered Yes to question 25 – Are you an unlawful user of, or addicted to, any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)?
» You are not eligible for licensure unless you have received federal relief from disabilities.
However, if you received a Certificate of Relief from Federal Disabilities, you may be eligible for licensure.
A copy of the certificate of relief must be submitted with your application. Upon receipt of this documentation, your application will be further reviewed to determine your eligibility for licensure. If additional information is required, you will be notified in writing.”
Before we get totally into the weeds on this, the Relief from Disabilities refers only to those already convicted of a felony, not simply unlawful users, which is how such a person is defined. So, you cannot be an unlawful user and legally apply for a FL CWL.
So, no luck with the Feds or Department of Agriculture and Consumer Services… let’s try the State Police! So what if we go directly to the Florida Department of Law Enforcement Firearms Purchasing Program, which regulates the FFL (Federal Firearms Licenses) and all gun sales in Florida? My correspondence with them refers me back to USC 922, which says in part: https://www.law.cornell.edu/uscode/text/18/922
“(g)It shall be unlawful for any person—
(3)who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)); to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” (which is almost every firearm)
I wrote to the Florida Department of Law Enforcement and asked about the dual possession of a MMC and a CWL. Their response: “Per the Bureau of Alcohol, Tobacco, Firearms and Explosives, marijuana is defined as a controlled substance and is illegal under Federal law, even if states have legalized or decriminalized its use. It is stated as such on question 11e on the ATF 4473 form that is completed by a buyer at the time of attempted purchase.” Sound familiar?
So I then asked, what about the possession of a gun and a MMC? They referred me to the ten categories of persons who are not eligible to purchase or possess a firearm under Federal law. Number 3 is: “Unlawful user or addicted to a controlled substance.”
We could get into the weeds pretty deeply if we try to define “possession.” I am not a lawyer, but I think you will find that “actual” and “constructive” possession are both intended, meaning any of the following are a problem for MMC holders: transporting, shipping, receiving, possessing, owning, shared ownership, right to possessing, controlling, accessing and probably a few more. For example, we do not allow felons to take our training classes as they would be withing arm’s reach of guns, touching guns, and shooting guns. Any of those would be forbidden.
Yes, but Nikki Fried (Commissioner of the FL Dept. Of Agriculture and Consumer Services, which issues the FL CWL)) says she has both and does not see a problem! Nikki Fried is many things, and being competent and knowledgeable about the law is not among them. She has done the citizens of Florida many disservices, and among them is her purposeful obfuscation of the simple and easily understood laws regarding this subject. Who knows what she is thinking, but she must assume the Feds will not touch such a high-profile elected official. She might be right. But don’t think for a minute that “Nikki has both” will get you anywhere in court.
You could say that because the FL CWL covers other (ie. non-firearms weapons not regulated by the Feds), one could have a legitimate purpose for having an MMC and a CWL, and not be in violation of Fed law. Theoretically, yes… but we all know that people get CWL’s to carry guns. FL 790.06 says: (2) The Department of Agriculture and Consumer Services shall issue a license if the applicant: (m) Is not prohibited from purchasing or possessing a firearm by any other provision of Florida or federal law.
So, there you have it. That last possible loophole has been closed, and Fried is wrong, breaking the laws of Florida and the USA, and, well, if it was one of us, would be prosecuted and jailed. Don’t expect that you will get the same wink and nod of you do the same.
So what will the future hold? Florida seems to be shifting blue and while that is good for marijuana users, don’t expect favorable treatment of your guns.
Until and unless the Federal law changes to either remove marijuana from the scheduled substances list or remove unlawful users from the prohibited list (neither likely soon in my opinions), there is no legal way to have both the MMC and a gun, though I suppose that you could technically obtain a CWL first, then an MMC, and as long as you never did or will possess a gun while in possession of both permits, you could be OK. Just don’t be surprised if you are among the first people they check.
SORRY — NO… and don’t complain to me! Write your Congressional Representatives!
(… and if you’re able, get some martial arts training!)
See my YouTube video: