Marijuana Rx May Put Guns Out of Reach

The bumper stickers on David Couch’s file cabinets provide hints as to his political leanings.

Even if Arkansas voters approve the use of medical marijuana in November, the drug still will be considered an illegal controlled substance by the federal government.

And that could cause legal problems for users and sellers of marijuana, according to law professors.

A recent ruling by the 9th Circuit Court of Appeals in San Francisco found that gun dealers can’t sell firearms to people who have medical marijuana cards because they are unlawful users of a controlled substance.

“Federal law prohibits unlawful drug users from possessing firearms, … and it also prohibits gun sellers from selling firearms to anyone that they have reasonable cause to suspect is an unlawful drug user,” said Alex Kreit, a law professor at the Thomas Jefferson School of Law in San Diego, where he teaches criminal law and controlled substances.

And the 9th Circuit ruling confirms that medical marijuana card holders, in the eyes of the federal government, fit that definition, Kreit said.

In addition, many medical marijuana businesses “have a very hard time getting banking service because they can’t do business that is illegal under federal law,” said Eugene Volokh, a professor of law at the University of California at Los Angeles School of Law, where he has taught criminal law and firearms regulation policy.

“The bottom line is, under federal law, possessing marijuana is still a crime. Selling marijuana is still a crime. Using marijuana is still a crime,” Volokh said.

Jonathan Marshfield, a law professor at the University of Arkansas School of Law in Fayetteville, said the federal government has concluded, however, that it’s not going to prosecute people for possessing marijuana.

“Those who use medical marijuana under the laws of the various states are really not on the radar of federal prosecutors,” Marshfield said. “Even though they could be prosecuted, they’re really not running into that kind of problem.”

Kreit said that while Congress has taken some action, it doesn’t solve the problem related to marijuana being classified as a controlled substance.

So far, 25 states have legalized marijuana in some form. On Nov. 8, Arkansas and seven other states will ask its voters to legalize the drug.

But in Arkansas, challenges are pending at the Arkansas Supreme Court to two similar-sounding ballot measures: the Arkansas Medical Cannabis Act and the Arkansas Medical Marijuana Amendment of 2016.

The initiatives are being challenged both on their wording and on whether enough valid signatures were collected from registered voters to qualify them for the ballot.

Little Rock attorney David Couch, who worked on the Arkansas Medical Marijuana Amendment of 2016, said he thinks his ballot measure will withstand the state Supreme Court’s scrutiny and be approved.

He sponsored a similar ballot measure in 2012 that was challenged. The state Supreme Court approved the wording, but it was defeated by voters.

“So when I did this one for this time around, I kept the basic structure and substance,” Couch said.

Still, even if voters approve medical marijuana in Arkansas, some of the federal issues involving the classification of the drug will have to be resolved.

“Federal law prevails over state law,” said Volokh, of UCLA. “And federal law says, rightly or wrongly, that possessing marijuana is a crime and has all sorts of indirect consequence such as your ability to acquire guns, so federal law is going to prevail until it’s changed.”

Kreit said that the federal law is going to have to change unless states suddenly start repealing their existing medical and recreational marijuana laws. And that’s unlikely.

“The reality is more and more states are passing medical marijuana and now recreational marijuana laws,” Kreit said. “And regardless of what one’s personal opinion is about these laws, they’re not going away anytime soon.”