As cannabis legalization hits major milestones in New York, state residents will soon enjoy greater access to legal marijuana; However, doing so could limit their access to legally owning firearms.
The State Office of Cannabis Management caused a stir among cannabis users and legalization advocates this week when it approved conditional dispensing licenses for nearly 40 companies. However, some proponents are concerned about federal and state laws that prevent medical patients and clients for adult use from exercising their Second Amendment right to legally own a gun.
“This is an ongoing problem because of the federal illegality of cannabis because it is a Schedule 1 substance,” said Michelle Fields, attorney and consultant for the Mary Jane Consulting Group and board member of the New York City Cannabis Industry Association.
Controversy over gun license control procedures that prevent cannabis users from legally owning firearms isn’t unique to New York. In fact, effective bans for medical cannabis patients stem largely from a memo from the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives.
ATF released this memo in 2011, when 17 states had legalized medical cannabis and many more were considering establishing medical programs. Because marijuana is a federally illegal drug, the Bureau, after receiving many inquiries, has concluded that state gun laws prohibit medical cannabis patients from legally owning guns.
“Any person who uses or is addicted to marijuana, whether or not their state has statutes permitting the use of marijuana for medical purposes, is an unlawful user of, or is addicted to, a controlled substance and who is licensed under federal law to possess the drug Firearms or weapons are prohibited ammunition,” the memo said.
The Federal Ninth Circuit Court of Appeals essentially upheld the memo in 2016, when it ruled against a Nevada-based plaintiff who argued that regulations preventing her from obtaining firearms because of her status as a medical cannabis patient nullified her rights of the Second Amendment.
Medical cannabis patients have been denied access to firearms for years, Fields said, because most states share data on which residents hold medical marijuana cards with officials at agencies that investigate 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 spokesman if a positive THC test would prevent an applicant from receiving a concealed carry license, and will update this story once we receive a response.
Scheril Murray Powell, attorney and chief operating officer for the nonprofit JUSTÜS Foundation, said concerns about Second Amendment rights for cannabis users have surfaced in several states that have legalized marijuana in recent years, and believes regulations that require applicants testing for gun licenses are archaic and outdated.
Although there are rules against cannabis users accessing firearms, Murray Powell said she hasn’t seen many cases where they have been strictly enforced.
“There’s a lot of fear, but I haven’t seen a case where someone has been denied access to marijuana because they were a gun owner or denied a firearm because they were a medical marijuana user,” said Murray Powell .
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But the issue of treating cannabis users differently from other gun license applicants is part of a broader problem by governments and law enforcement agencies regarding weed as a public safety threat, she said.
For example, truck drivers and others with a commercial driver’s license can’t keep that license if they’re a registered medical cannabis patient, Murray Powell said. Additionally, CDL license holders are required to undergo drug screening and may lose their ability to drive commercial vehicles if they test positive — which they can if used within the last 90 days.
“It is unfair that cannabis is treated, discriminated against and assessed for risk differently than other medical pain relief counterparts such as drugs…and alcohol,” said Murray Powell.
Fields, the attorney and consultant for the Mary Jane Consulting Group, said she knows many people in New York who have chosen not to join the state’s medical cannabis program because they don’t want to lose their gun licenses. These people are mostly retired military and law enforcement officials who would like to treat illnesses with medicinal cannabis, but don’t want to give up their guns.
New York could pass legislation to shut down the state’s database of medicinal cannabis patients to all but healthcare professionals, Fields said. States like Michigan, Missouri, Ohio, Oregon and Pennsylvania have already taken such measures, she said.
But if lawmakers don’t address the issue in the 2023 legislature, Fields believes regulators should clarify New York’s rules regarding cannabis use and gun licensing sooner rather than later.
“I think New York really needs clear guidance,” Fields said.