Guns and Marijuana FBI Issues Little Noticed Memo But Founding Fathers Might Differ

In a new statement issued by the Federal Bureau of Investigation being a state-registered medical marijuana caregiver in states such as New Mexico, Colorado or the many other states where marijuana is legal being a grower doesn’t automatically disqualify a person from owning a firearm. But merely possessing a medical cannabis card as a patient does render a person ineligible per reporting by the New York Times.

Legal challenges are pending across the country against a federal law that prevents medical marijuana users from buying or owning firearms.

Amid the growing tension between federal gun policies and the ever-expanding state marijuana legalization movement, a little-noticed FBI memo from 2019 offers a lens into the byzantine legal interpretations surrounding cannabis and firearms—an issue that’s recently been raised in multiple federal court cases.

The government has several different ways it assesses firearm eligibility in the context of cannabis, according to the memo from FBI’s Criminal Justice Information Services (CJIS) Division, which was briefly noted in a report from The New York Times last week. In some cases, that involves affirmatively restricting gun rights based on activities or documentation that doesn’t necessarily mean a person is an active marijuana consumer.

The issue is shaping up to be one of the next legal frontiers in the national debate over gun policy, as courts around the country are asked to determine whether the longstanding federal restriction on marijuana users conflicts with Second Amendment gun rights.

Medical marijuana is now legal in 38 states, the District of Columbia and four U.S. territories, and more than 3.5 million people are enrolled in state programs to use it to help with seizures, post-traumatic stress disorder, multiple sclerosis, Crohn’s disease, pain and other conditions. The constellation of medicinal users, however, is certainly much larger since several states, including California, do not require registration, and two dozen states have also legalized recreational marijuana.

At their core, the federal rules say that being an “unlawful user” of a controlled substance, including marijuana, means a person cannot buy or possess a gun. Would-be gun purchasers are required to disclose such use as part of a Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) form before making a purchase, and lying on that form is a felony offense.

The statute behind that prohibition has been challenged in a number of federal courts over the past couple of years, with more than one judicial body determining that the restriction is unconstitutional. The Department of Justice (DOJ) has steadfastly defended the ban, however, contending that medical marijuana patients and everyday consumers pose unique dangers to society that justify withholding Second Amendment rights.

Per an ATF Memo there is a twelve month rule. The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) Regulation Title 27, Code of Federal Regulations (C.F.R.), Section 478.11 specifically defines an unlawful user of or addicted to any controlled substance as "a person who has lost the power of self-control with reference to the use of a controlled substance; and any person who is a current user of a controlled substance in a manner other than prescribed by a licensed physician." As defined by 21 U.S.C. § 802 and C.F.R. Part 1308; the term "controlled substance" means a drug or other substance, or immediate precursor included in the Controlled Substance Act (CSA) Scheduling. Such use is not limited to the use of drugs on a particular day, or within a matter of days or weeks before, but rather that the unlawful use has occurred recently enough to indicate the individual is actively engaged in such conduct. An inference of current use or possession may be drawn from evidence of a recent use or possession of a controlled substance or a pattern of use or possession that reasonably covers the present time. The ATF has determined that the present time is represented by the time frame of within the past 12 months.

Per the report by the FBI “The following scenarios will be used to determine the disqualification period in regard to possession of a medical marijuana user card:

1. One year from the date of the medical marijuana user card’s expiration date; or

2. One year from the date of ‘admission’ of possession of the medical marijuana user card, if no expiration date is available; or

3. One year from the date the medical marijuana user card is relinquished.”

Notably, the memo does carve out certain exceptions to its cannabis rules for gun ownership, clarifying that possession of marijuana is not disqualifying if the person is identified as a medical cannabis “caregiver, grower, provider, etc.”

Gun use and marijuana seems to be an issue of concern for the Biden Adminstrationa the Justice Department told the U.S. Court of Appeals for the Third Circuit that historical precedent “comfortably” supports the restriction. Cannabis consumers with guns pose a unique danger to society, the Biden administration claimed, in part because they’re “unlikely” to store their weapon properly.

In a brief submitted in that case, attorneys for the Justice Department argued the firearm ban for marijuana consumers is further justified based on historical analogues to restrictions on the mentally ill and habitually drunk that were imposed during the time of the Second Amendment’s ratification in 1791.

The federal government has repeatedly claimed that those analogues provide clear support for limiting gun rights for cannabis users. But several federal courts have separately deemed the marijuana-related ban unconstitutional, leading DOJ to appeal in several ongoing cases.

The Justice Department asserted similar points during oral arguments in a separate but related case before the U.S. Court of Appeals for the Eleventh Circuit in October. That case focuses on the Second Amendment rights of medical cannabis patients in Florida.

The FBI brief has caused even more confusion around guns and marijuana use as has the Biden adminstration and the courts will likely decide the final outcomes pushing congress to further modify federal laws around legalization and gun policy related to the 2nd Amendment. Marijuana was a legal substance and hemp was in wide use by the founding fathers during the time of the writing of the 2nd Amendment.

Hemp, marjuana and gun use date back to the founding of the nation. George Washington’s initial interest in hemp was as a cash crop. After deciding not to cultivate it as a cash crop, Washington grew it to meet the needs of his own plantation. Hemp was used at Mount Vernon for rope, thread for sewing sacks, canvas, and for repairing the seine nets used at the fisheries. Washington’s diaries and farm reports indicate that hemp grew at all five farms which made up Mount Vernon, (Mansion House, River Farm, Dogue Run Farm, Muddy Hole Farm, and Union Farm).

So, which of our founding fathers partook? According to records from the Smithsonian Institute and the American Historical Reference Society, the following had involvement in growing hemp: George Washington, Thomas Jefferson, Benjamin Franklin, and James Madison.

Washington was a prolific hemp farmer, mentioning the plant at least 90 times in his diaries and writings, and was keen to process the hemp into rope that he used on his fishing ships. He was also known to use it to help with the pain from his false teeth.

Jefferson grew hemp on his Monticello estate and has been quoted as saying, “Some of my finest hours have been spent on my back veranda, smoking hemp and observing as far as my eye can see.”

Franklin owned one of the first paper mills that processed hemp into parchment and often wrote of the importance of hemp for industry and innovation. James Madison was also a hemp farmer and wrote to George Washington in 1784 about the drop in hemp prices compared to the increase in tobacco prices.

Other founding fathers included John Adams, Alexander Hamilton, and John Jay. Thus the debate in courts of gun policy and marijuana need only look back at the nations beginning to know what the intent was of gun policy and marijuana at the nations founding.

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