The Second Amendment and Medical Cannabis in Pennsylvania

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

By Patrick K. Nightingale

The issue of a medical cannabis patient’s Second Amendment rights is of great concern here in the Commonwealth of Pennsylvania.  Pennsylvania has a long tradition of hunting and we have a large Veteran community.  Over 250,000 patients are participating in Pennsylvania’s medical cannabis program and many are concerned about their right to possess, purchase and carry a firearm.

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.  The Bureau of Alcohol, Tobacco, Firearms and Explosives summarized the status of state medical cannabis programs in a September 2011 letter in which it said “any person who uses or is addicted to marijuana, regardless of whether his or her State has passed legislation authorizing marijuana use for medicinal purposes, is an unlawful user of or addicted to a controlled substance, and is prohibited by Federal law from possessing firearms or ammunition.”  It further stated that merely possessing a medical cannabis patient identification can create an inference that the individual is an unlawful user of a controlled substance.

Does Pennsylvania law prohibit a registered Pennsylvania patient from owning/possessing 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 a spending rider attached to the federal budget prohibits the Department of Justice from using its Congressionally authorized budget to prosecute well regulated state medical cannabis programs.  I have never heard of an otherwise law abiding medical cannabis patient being prosecuted under §922(g)(3), and the spending rider likely prohibits the Department of Justice from initiating such a prosecution.  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.  Under federal law the mere possession of a medical cannabis patient identification card the mere possession of a Medical Marijuana Card will give rise to an inference that you are an “unlawful user of or addicted to” a controlled substance, pursuant to 27 C.F.R. § 478.11.

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.

An ATF Form 4473 is not required for the purchase of a rifle or shotgun unless purchased from a federally licensed firearms dealer who conducts background checks for all firearm purchases, 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.

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

No/Yes  The right to carry a concealed firearm in Pennsylvania is regulated by Pennsylvania state law at 18 Pa.C.S.A. §6109.  The authority to issue a Concealed Carry Permit is vested in the County Sheriff of the county in which the individual resides.  Section 6109 prohibits an illegal user of marijuana from obtaining a concealed carry permit.  A Pennsylvania medical cannabis patient’s use is legal in Pennsylvania, but illegal federally.  Section 6109(xiv) however sets forth that one cannot obtain their concealed carry permit if one is “(a)n individual who is prohibited from possessing or acquiring a firearm under the statutes of the United States.”  As set forth above, any cannabis consumer is a prohibited person under 18 U.S.C. §922(g)(3).

Pursuant to §6109(c) every application for a concealed carry permit includes the following language:

I have never been convicted of a crime that prohibits me from possessing or acquiring a firearm under Federal or State law. I am of sound mind and have never been committed to a mental institution. I hereby certify that the statements contained herein are true and correct to the best of my knowledge and belief. I understand that, if I knowingly make any false statements herein, I am subject to penalties prescribed by law. I authorize the sheriff, or his designee, or, in the case of first class cities, the chief or head of the police department, or his designee, to inspect only those records or documents relevant to information required for this application. If I am issued a license and knowingly become ineligible to legally possess or acquire firearms, I will promptly notify the sheriff of the county in which I reside or, if I reside in a city of the first class, the chief of police of that city.

(Emphasis added).  The last sentence makes it clear that Pennsylvania law requires one to surrender a concealed carry permit if one subsequently registers as a medical cannabis patient.

Is the Patient Registry Accessible to Law Enforcement Performing Background Checks?

 No.  Pennsylvania’s medical cannabis patient registry is confidential pursuant to 35 Pa.C.S.A. 10231.302(a).

Does Federal Law Apply to Pennsylvania’s “Intrastate” Medical Cannabis Program?

Yes.  In 2005 the United States Supreme Court address this issue in Gonzalez v. Raich.  In Raich the defendants presented the argument that legal home cultivation pursuant to California’s medical cannabis law fell outside of federal jurisdiction because it was purely “intrastate” commerce that did not trigger jurisdiction pursuant to the Commerce Clause of the United States Constitution.  In a 6-3 decision rejecting the claim the Supreme Court cited a 1942 case that allowed the federal government to regulate wheat grown for personal consumption.  The Court said:

[T]he regulation is squarely within Congress’ commerce power because production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity.  Raich.

 

Unfortunately, federal law is not on the side of Pennsylvania patients.  A patient who owns firearms is unaffected by Pennsylvania state law but issues arise relative to concealed carry and new firearms purchases.  Until cannabis is either rescheduled or de-scheduled federally Pennsyvania medical cannabis patients’ Second Amendment rights are significantly curtailed.

For more information please contact Patrick K. Nightingale at pknlaw@mac.com.

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