THE FOGHORN

FAQ Friday: Can a Maine medical marijuana patient or caregiver buy or own a gun?


Federal and state law both expose medical marijuana patients and caregivers who own guns to increased risk of fines and incarceration.

One of the questions I run into most frequently in my practice is, "Can a patient or caregiver legally buy or own a gun in Maine?" The short answer is 'no,' under federal law, and even under Maine law, being a patient or caregiver creates additional legal risk for gun owners. This post will address some of the laws affecting medical marijuana patients, caregivers, and gun owners at both the federal and state levels.

Federal Law

Q: Is a medical marijuana user permitted to buy a gun from a licensed dealer under federal law?

A: No. Under the federal Gun Control Act of 1968, it is illegal for any person to sell a firearm to a person who is "an unlawful user of or addicted to any controlled substance." Because the Controlled Substances Act (CSA) treats anyone who uses marijuana as an "unlawful user" (since cannabis is a Schedule I drug under the CSA), it is federally prohibited to sell a firearm to anyone who uses cannabis.

A firearms dealer is required to ask each prospective buyer, on the background check form, if the buyer is a user of illegal drugs. Because a medical marijuana patient is considered an "illegal" drug user under the CSA, a patient who uses medical marijuana must answer "yes" to that question, or commit perjury. If a patient were to answer untruthfully and later faced federal charges, it could come to light that the patient bought the gun illegally and falsified the background check. This would likely carry additional fines and add to a potential prison sentence.

Q: Is a medical marijuana user permitted to possess a gun or ammo under federal law?

A: No. It is prohibited, under the federal Gun Control Act of 1968, for anyone who is "an unlawful user of or addicted to any controlled substance" to even possess any "firearm or ammunition which has been shipped or transported in interstate or foreign commerce." Since virtually all firearms and ammunition have been shipped or transported interstate (this includes the parts they're made from), it is prohibited under federal law for a cannabis user to even possess a gun or ammo.

It is true that virtually everything a medical marijuana patient or caregiver does with cannabis is prohibited at the federal level, and that it is currently a U.S. Department of Justice policy not to prosecute people who lawfully participate in state medical marijuana programs. However, this policy could potentially change at any time. Thus, any patient or caregiver who owns a firearm is at risk of federal prosecution.

Maine Law

Q: Are there any additional prohibitions under Maine law against a cannabis user buying a gun from a licensed dealer?

A: Yes, Maine law also prohibits anyone from possessing a firearm who is "an unlawful user of or is addicted to any controlled substance and as a result is prohibited from possession of a firearm under" the federal Gun Control Act of 1968. 15 M.R.S.A. §393(G). Thus, Maine law features a prohibition that mirrors the federal prohibition against cannabis users possessing firearms.

UPDATE: In October, 2019 this prohibition came under legal challenge brought by an individual who was subject to a traffic stop in Maine and charged with illegal possession of firearms, solely because he also possessed 5 1/2 ounces of cannabis, despite his status as a medical marijuana patient. The matter is currently pending before the Maine Supreme Court, and no decision has yet been issued as of the time of this update.

Q: Are there any additional considerations under Maine law for a medical marijuana user or caregiver possessing a gun or ammo?

A: Yes. In addition to the state-law prohibition against a person possessing or owning a gun simply because that person uses medical marijuana, being a patient or caregiver poses additional risks to Maine gun owners. In the event that a patient or caregiver were charged with a Maine drug offense, prosecutors could allege involvement of a gun in the offense to enhance the charges. For instance, if the state decided a firearm was sufficiently related to a caregiver's drug trafficking charge, the charge could be enhanced to "aggravated trafficking," with increased potential jail time and fines.

Conclusion

In short, for a law-abiding Maine medical marijuana patient or caregiver to own a firearm does expose him or her to increased risk of fines and incarceration at both the federal and state levels. Many understandably feel that the federal prohibition against medical marijuana users owning firearms is a violation of patients' Second Amendment rights. However, until the law changes, patients and caregivers should be aware of the serious legal risks posed by gun ownership.

For more information on the legal landscape of medical marijuana and gun ownership, contact Dubois Law.

#medicalmarijuana #firearm #gun #secondamendment

A Maine Cannabis Law Firm

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