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Missouri Medical Marijuana and Firearms Rights

On Behalf of | Nov 11, 2018 | Pat Talks Law |

Missouri’s Medical Marijuana Card will impact your firearms rights. Find out how.

Medicinal Marijuana and Guns

Now that Missouri has approved Medical Marijuana, Missourians are taking a serious look at what that means for gun rights. We have a two-fold problem: Federal and State law.

Since popular media has focused on the federal question, I’ll start with that first.

The main items to look at are 18 U.S.C. §922 and the Open Letter – links are provided in the description.

There is a Case in the 9th Circuit from Nevada that is bad for the idea that you can have your medicinal and your guns. While the 9th Circuit is not controlling in Missouri (We are located in the 8th Circuit) It is ridiculous to think that the 8th Circuit would not consider the reasoned opinion of a Sister Circuit.

In Wilson v. Lynch the Court applied a two-step test to determine (1) “whether the challenged law burdens conduct protected by the Second Amendment and (2) if so … apply an appropriate level of scrutiny. The Court found that the law only barred the sale of firearms to Wilson – not her possession of those firearms. “Wilson could have amassed legal firearms before acquiring a registry card, and 18 U.S.C. §922(d)(3), 27 C.F.R. §478.11, and the Open Letter would not impede her right to keep her firearms or use them to protect herself and her home.” Because the burden is on future acquisition and not current possession or firearms, the Court determined that the burden was not severe and applied intermediate scrutiny.

Intermediate scrutiny requires that the government’s state objective be significant, substantial, or important, and that there be a reasonable fit between the challenged regulation and the asserted objective.

I think the elephant in the room in room for the Wilson case is that the definition of “unlawful” was only addressed in dicta during a discussion of a non-existent Administrative Procedure Act violation. To me this is clearly the issue behind medicinal marijuana and THE issue that the courts must address at some point.

Section 478.11 defines an unlawful user as “any person who is a current user of a controlled substance in a manner other than as prescribed by a licensed physician.” The government – or in the Wilson Case – the Court argues that “[U]nder 21 U.S.C. § 812, marijuana is a Schedule I controlled substance, meaning that–as far as Congress is concerned–marijuana “has no currently accepted medical use in treatment[, and] there is a lack of accepted safety for use of the . . . substance under medical supervision.” THC is a schedule 1 drug. This, however, is an error.

A challenge to the classification in February of this year by Jose Belen, an Army Vet, was kicked for failure to exhaust remedies through the DEA first. The DEA has – to its credit – been moving the research needle in regards to medicinal marijuana; but we still have a long fight there. It will be faster and easier to lobby Congress for a change. Frankly, full decriminalization is more likely to occur before the DEA removes THC from the schedule 1 list.

The reality is that in the short run – once you have a medical marijuana card in Missouri – you are not going to be able to purchase a firearm from a dealer legally as disclosing your medical marijuana card will result in denial of the sale. Dealers face criminal penalties for proceeding with a sale, so they are not going to risk their going to prison. Lying and claiming that you don’t have a medical marijuana card might work for the moment, but I expect that you would face criminal charges when the Feds find out. And they will find out.

So is this a long way to simply say, you’re screwed. You can’t have guns and medicinal at the same time. No, not under federal law. There is a question as to the applicability of §922(g)(3). But I don’t think they will prosecute that.

You will not be able to purchase guns while you have a medical marijuana card. The Wilson case was quite clear in stating that the DEA Open Letter and 18 U.S.C. § 922 will work to restrict future acquisition of firearms. Not take away the ones you have.

Reflecting on Missouri Law

Now – how does this work with Missouri Law. That gets a little more interesting:

In Missouri, RSMo 571.070 states:

A person commits the offense of unlawful possession of a firearm if such person knowingly has any firearm in his or her possession and (2) Such person is habitually in an intoxicated or drugged condition… This is a class D felony punishable by up to 7 years in the Department of Corrections and a $10,000 fine.

We are not going to know how the Courts will rule on this until someone is arrested, charged, convicted and the appeals process runs. I think you should be very concerned. In fact, my advice in Missouri would be – before you get a medical marijuana card, sell, or secure your firearms beyond your control so there is no way they can be in your possession. (And no that does not mean in a gun safe in your home.)

The statutory prohibition on possession of firearms by habitually intoxicated or drugged persons is rarely, if ever, invoked. I have not found a single reported case with a conviction under that prohibition in Missouri. My thought is that prosecutors haven’t really attempted to use it because of the difficulty of proving that a person has manifested a habitually intoxicated or drugged condition. However, federal case law – the Wilson case for example – is persuasive authority that possession mere possession of a medical marijuana case gives rise to the reasonable presumption that you are a marijuana user. I expect to see this charged being filed quite a bit once things get rolling.

It will go like this: There is a report of person growing marijuana in their backyard. The police will come investigate. They find the weed and your firearms. You present your card; but, instead of wishing you a nice day and leaving, they arrest you for unlawful possession of a firearm. Or the misdemeanor of Possession of a firearm or “projectile weapon” while intoxicated. RSMo §571.030.

I couldn’t advise someone to take the chance that they might commit a Class D felony. If you are getting a Missouri Medical Marijuana Card, get rid of your firearms first. At least until someone else has risked prison to get an appellate opinion on the application of the law.