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Medical Cannabis and the Second Amendment – What are a patient’s firearms rights?

Patrick Nightingale testifying at the Pennsylvania State House.

Medical Cannabis and the Second Amendment – what are a patient’s firearms rights?
By Patrick K. Nightingale, partner Cannabis Legal Solutions

The issue of a medical cannabis patient’s Second Amendment rights is of great concern here in the Commonwealth of Pennsylvania where we have a long tradition of hunting and sportsmen.  Now that physicians are registered and patients can seek recommendations many are wondering whether they will lose their Second Amendment rights or be required to surrender their firearms.

The answers are not entirely straightforward.  Under PA law a medical cannabis patient is not prejudiced relative to firearms ownership.  Under federal law, however, that same patient risks a felony prosecution under federal firearms law.  Any patient purchasing a firearm from a licensed firearms dealer is required to execute ATF Form 4473 which, as will be discussed below, does not acknowledge medical cannabis.

Does Pennsylvania law prohibit a registered Pennsylvania patient from owning a firearm?

No.  Pennsylvania’s medical cannabis law is silent on the issue of firearm possession.  Title 18, section 6105 of the Pennsylvania Criminal Code sets forth that certain persons may not possess a firearm.  Section 6105 requires a criminal conviction.  Simple possession does not trigger the prohibitions under section 6105 unless the individual has a prior drug possession conviction.  The majority of the offenses that are set forth in section 6105 are felony level offenses.  Certain misdemeanors are also included such as second or subsequent drug possession conviction, Prohibited Offensive Weapon, Corruption of the Morals of a Minor and three or more DUI convictions.  A person subject to a Protection From Abuse order or an individual with a prior mental health commitment is also prohibited.

Does Federal law prohibit a registered Pennsylvania patient from owning a firearm?

Yes.  Title 18, section 922(g)(3) of the United States Code prohibits any individual who is an unlawful user of controlled substances from possessing a firearm.  Cannabis remains a Schedule I controlled substance and the DEA and ATF have made clear that federal law does not recognize an exception for state medicinal cannabis patients.  A violation of section 922(g)(3) is a felony with a maximum period of incarceration of 10 years.  At present the Rohrbacher-Blumenaeur budget amendment prohibits the Department of Justice from using its Congressionally authorized budget to prosecute state cannabis programs.  Even if the amendment is not included in the final budget it is highly unlikely that the Department of Justice will utilize its limited resources to prosecute individual patients under this section unless the patient is otherwise involved in a more significant violation of federal law.

Can I apply for my Concealed Carry Permit/Must I surrender my Concealed Carry Permit?

No/No.  The right to carry a concealed firearm in Pennsylvania is regulated by Pennsylvania state law.  The authority to issue a Concealed Carry Permit is vested in the County Sheriff of the county in which the individual resides.  18 Pa.C.S.A. §6109 sets forth the process for a concealed carry application and the responsibilities of the County Sheriff in reviewing applications.

One of the criteria is whether the applicant is an “unlawful user of marijuana.”  A registered patient would be a lawful user of marijuana under PA law.  Section 6109(e)(xiv) however, acts as a “catch all” and prohibits issuing a concealed carry permit to anyone otherwise prohibited under federal law from possessing a firearm.  Since any user of cannabis, whether pursuant to state law or not, violates 18 U.S.C. §922(g)(3) an application for a concealed carry permit will be denied.

At the time of writing I am unaware of any mechanism to try and revoke concealed carry permits merely because a patient is registered with the Department of Health.

Can I purchase a firearm lawfully if I am a registered PA patient?

No.  Any firearm purchase from a federally licensed firearms dealer involves the execution of ATF Form 4473. In 2016 the ATF modified the form to include the following language in question 11(e):

“Are you an unlawful user of, or addicted to, marijuana or any other depressant, stimulant, narcotic drug, or any other controlled substance?  Warning:  the use or possession of marijuana remains unlawful under federal law regardless or whether it has been legalized or decriminalized for medicinal or recreational purposes in the state where you reside.”  (Emphasis in original).

If a registered patient answers this truthfully the sale will be denied after a Pennsylvania State Police review of the form.  If the patient lies on the form in order to purchase the firearm the patient risks felony prosecution by the Pennsylvania State Police.

An ATF Form 4473 is not required for the purchase of a rifle or shotgun, but a patient would nonetheless be considered a prohibited person.

A recent Ninth Circuit case addressed the issue of an Arizona patient attempting to purchase a firearm.  The licensed firearm dealer knew the individual was a medical cannabis patient and denied the sale.  The issue went before the federal appellate court and the court held that the Second Amendment does not protect the patient where cannabis remains a Schedule I controlled substance under federal law.  The Ninth Circuit is not law here in the Third Circuit, but I do not anticipate a holding from out Court of Appeals that would grant Second Amendment rights without a change in federal law.

Unfortunately, federal law does not appear to be on the side of Pennsylvania patients.  A patient who owns firearms and/or possesses a concealed carry permit is unaffected by Pennsylvania state law but can easily run afoul of federal law if making a new firearms purchase.

For more information please contact Patrick K. Nightingale of Cannabis Legal Solutions at Patrick@cannabislegalsolutions.net

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Vinni BelfioreMedical Cannabis and the Second Amendment – What are a patient’s firearms rights?