Can Texas Licensed Medical Marijuana Users Own a Gun?

by | Oct 30, 2019 | Dallas Criminal Law

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Can Texas Licensed Medical Marijuana Users Own a Gun?

Being a responsible gun owner is part of our proud heritage in Texas.  There is no denying that we are a State that culturally loves our firearms, both for recreational purposes such as hunting, and for personal protection needs.

In fact, the right to bear arms was enacted in our Constitution and then further established at the state level by Article 1 § 23, of 1876.  In Texas, every citizen has the right to keep and bear arms in the lawful defense of himself or the State.

However, State Legislature maintains the power to enact laws that regulate the ‘wearing of arms’ in order to prevent and control violent crimes.

The Declaration of Rights (1836) also states “Every citizen shall have the right to bear arms in defense of himself and the republic.”  We have the right to own and operate firearms within the limits of the law, to protect our property, our family and ourselves.

But one unexpected outcome and contraction that has occurred after Texas legalized medical cannabis use, involves that very right to own and bear arms.   A significant contradiction between State and Federal laws that could result in a misdemeanor or felony offense.

The Contradiction Between State and Federal Laws About Marijuana Use

On June 15, 2019 Texas Governor Greg Abbott signed a new law, House Bill 3703 which further increased the number of medical conditions that would qualify patients for medicinal cannabis use.  Texas by comparison to many states across the country, has very restrictive medical marijuana eligibility criteria, pertaining to a short list of medical conditions which include:

  • Multiple Sclerosis
  • Parkinson’s Disease
  • ALS
  • Terminal Cancer (hospice stage 3 or stage 4)
  • Autism
  • Incurable Neurodegenerative Disease

The new medical eligibility criteria went into effect on June 15th, 2019.  That meant that a larger number of clinically diagnosed patients in Texas would have access to alternative medicinal therapies.  Also, unlike other States, Texas has ruled that medicinal use of cannabis is limited to inhaler or vape forms and distilled oils.

While the State of Texas has legalized marijuana use expressly for medicinal and doctor supervised prescription use, the United States Federal Government has not changed the classification or laws of cannabis products.  At the Federal level, cannabis remains a Schedule II drug, which is a controlled substance and prohibited by law.

That’s a little confusing isn’t it?  In technical terms, while a citizen in Texas may be legitimately licensed to acquire and use medical grade cannabis provided by a dispensary, when that patient fills their prescription, they are still breaking Federal law.  And arguably, could be charged with drug use and possession by a Federal agent, within the State of Texas.

This delineation between Federal and State law is critically important, when it comes to gun ownership, as I will explain.  The further expansion of more qualifying health conditions means that more people may find themselves in a situation where they are caught between Federal mandates and State laws, specifically with regards to personal gun ownership.

The Requirements for Gun Ownership Prohibit Drug Use or Dependency

The United States Code Title 18 U.S.C. Section 922 (Subsection D) states that: “a person cannot transfer a gun to someone who is an unlawful user of or addicted to a controlled substance including marijuana.” Furthermore, in Subsection (g), the Federal law states that “… a person cannot be an unlawful user of or addicted to a controlled substance including marijuana and possess a gun.”

If you are a legally licensed medical marijuana user in Texas, by Federal law, it is illegal to:

  • Sell, or transfer a gun to someone who is a legal (or illegal recreational user) of cannabis or another controlled substance.
  • Apply for and acquire a license to carry and purchase a firearm.

Unlike the crime of driving while impaired (DWI) the Federal laws do not distinguish a difference for intoxication on the day, week or month that you are charged with possession of a firearm.  This adds some further confusion and contradiction between Federal and State laws in Texas regarding medicinal cannabis.

In 27 CFR 478.11, Federal law states that “… an unlawful user of or a person addicted to any controlled substance is defined in 27 CFR 487.11 and includes: a person who uses a controlled substance and has lost the power of self-control with reference to the use controlled substance; and any person who is a current user of a controlled substance in a manner other than as prescribed by a licensed physician.”

Keep in mind that all patients in Texas must apply for and meet the strict criteria set forth by the State of Texas to qualify for legalized access to medical marijuana.  And part of that application process naturally, involves recommendation and supervision by a licensed physician.

Feeling confused?  So is everyone else, because State and Federal Laws currently regarding medical cannabis are in direct conflict with each other.  And that is already creating problems for medical cannabis users, and even more precarious risks when it comes to firearm ownership for medical card holders.

Do You Have a Medical Cannabis License in Texas and Wish to Get a Firearm?

One of the questions you will be asked as you apply for a gun permit in the State of Texas, cannot be answered honestly if you are a current medical cannabis cardholder, and resident of the State.  The firearm application clearly states:

“Warning: The use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medicinal or recreational purposes in the state where you reside.”

State Rep. Stephanie Klick, R-Fort Worth provided a statement on The Dallas Morning News, that expressed less concern about the conflict of medical marijuana card-holders purchasing firearms:

“These are very sick people,” she said. “People with spasticity have mobility issues. People with ALS over time will become ventilator dependent. They’re not going to go out and buy guns.”

However other State Representatives argued that some patients may be younger in age, and still within the years where they may wish to purchase a recreational (hunting) gun or a firearm for personal or household protection.

Section 922(g) (3) of Title 18 of the United States Criminal Code makes it illegal for a person to possess a firearm “who is an unlawful user of or addicted to any controlled substance.”

What If You Already Owned a Firearm When You Were Approved for Medical Cannabis Use?

There is a big issue with using marijuana, even with a medical license, and owning and using a gun, even if you are licensed to carry. The issue is in flux and is affected by many, complex variables and values, state and federal laws, and emotional opinions. For now, in Texas, there is no definite answer as to this part of the law is still being developed.

However, the Federal law is currently clear – Marijuana users, even those with a medical license, are using a controlled substance, so they are prohibited from owning a gun, per the federal Gun Control Act at this time.

Federal laws, Bureau of Alcohol, Tobacco, and Firearms’ 2011 guidance, court orders, and rulings, and ATF forms emphasize and support that users of a controlled substance are prohibited from purchasing, possessing, and owning any firearm or ammunition… no matter what Texas state law and regulations permit or specify.

Thus, Federal law technically allows federal agents to force the state of Texas to retract the concealed carry license based on the marijuana card. However, just having a card is not a violation of federal law. Further, federal appellate courts have held that the marijuana disqualification relating to firearms DOES NOT violate the Second Amendment with respect to either the purchase of firearms or the possession of firearms.  Note, that neither the Supreme Court, nor the Fifth Circuit Court of Appeals have ruled on this issue.

For now, nothing will allow a lawful or unlawful user of marijuana to purchase or possess firearms until the Federal Government decides to amend or repeal its marijuana laws.

If you violate existing federal law now, you could subject yourself to a Felony, imprisonment up to 10 years, and a monetary fine. Civil penalties could be additional, and you might even lose any federal benefits, including (perhaps depending on vesting and exceptions) military or civilian retirement benefits, health insurance, and age eligibility for retiring. Who knows? Changes, interpretations, and decisions in this developing area of the law come quickly and vary. Therefore, until this law changes, guns and marijuana don’t mix.

 

If you have been charged with a misdemeanor or felony drug offense involving possession of firearms, contact Britt Redden, of Redden Law PLLC for a free legal consultation.   Choose an experienced criminal defense Attorney in Dallas, who fights for dismissal of charges by preparing a powerful legal defense strategy.

When the Red and Blue lights are lit, call Britt!

Schedule your free legal consultation.

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