Social posts wrongly claim that states legalizing marijuana also have “legislated” that those who use the drug cannot have guns. Actually, a long-standing federal law prohibits marijuana users from possessing or purchasing firearms, regardless of state policies.
That’s because marijuana remains a Schedule I drug — along with heroin, LSD and others — and is therefore illegal in the eyes of the federal government, regardless of what state laws say. It’s been classified that way since 1970.
“Before you celebrate the legalization of marijuana, just know: Nearly every state that has legalized it has also legislated that you lose your right to own a gun if you are prescribed it, or buy it recreationally,” the posts claim. “Pot legalization is turning out to be a back-door way for the government to get you to voluntarily give up your gun rights.”
“I’m not aware of any state that bans gun possession by users of legal cannabis,” Mark Kleiman, a professor of public policy at New York University’s Marron Institute of Urban Management, told us in an email. “But it’s true that federal law clearly does. The paranoid claim that this constitutes a plot by ‘the government’ is transparently silly.”
As the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives made clear in a 2011 open letter, federal law “prohibits any person who is an ‘unlawful user of or addicted to any controlled substance…’ from shipping, transporting, receiving or possessing firearms or ammunition.” The letter also states that it is “unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person is an unlawful user of or addicted to a controlled substance.”
The letter continues: “Therefore, any person who uses or is addicted to marijuana, regardless of whether his or her State has passed legislation authorizing marijuana use for medical purposes, is an unlawful user of or addicted to a controlled substance, and is prohibited by Federal law from possessing firearms or ammunition.”
The federal firearm transaction form — used by federal firearms licensees, such as gun shops, to determine whether a sale is lawful — also explicitly asks about a buyer’s “unlawful” marijuana use and notes that the “use or possession of marijuana remains unlawful under Federal law regardless” of state policies.
Making false written statements on the application is a felony that can be punished with up to 10 years in prison and a fine of up to $250,000, according to the U.S. Government Accountability Office. A 2018 GAO report found, however, that the U.S., in fiscal year 2017, rarely prosecuted cases in which firearm applicants made false statements on a form and were subsequently denied.
Yet, the GAO noted, then-Attorney General Jeff Sessions in March 2018 “issued a memo that directed all United States Attorneys to enhance prosecution of cases involving individuals who make false statements on the ATF Form 4473.”
Among examples of such prosecutions, the government brought charges against a Maine man last year for making false statements, including about his marijuana use, on the form in February and March 2017. He later pleaded guilty and was sentenced to eight months imprisonment and $200 in fines. The transactions took place after the recreational use of marijuana was legalized in Maine. Voters there approved it in 2016 and the part of the recreational law allowing people 21 and older to grow six “mature plants” and carry 2.5 ounces took effect Jan. 30, 2017. The state has also allowed for the use of medical marijuana since 1999.
One court challenge to federal law and the ATF’s open letter — filed by a Nevada woman who was refused a firearm because of her medical marijuana registry card — was dismissed by a U.S. District Court. The U.S. Ninth Circuit Court of Appeals upheld that ruling in 2016, finding that the policies did not violate her Second Amendment rights.
Karen O’Keefe, director of state policies for the advocacy group Marijuana Policy Project, also confirmed in an emailed response to FactCheck.org that she had not heard of states legalizing marijuana and then legislating to restrict gun access for those who use it.
“On the contrary, legislative action has tended to focus on protecting gun rights of cannabis users,” O’Keefe said, citing Oklahoma as an example.
Oklahoma became the 30th state to legalize medical marijuana last year, and state officials recently approved legislation attempting to reaffirm that medical marijuana patients should not be restricted from accessing guns. The measure, signed by the governor in March, states that a “medical marijuana patient or caregiver licensee shall not be denied the right to own, purchase or possess a firearm, ammunition, or firearm accessories based solely on his or her status as a medical marijuana patient or caregiver licensee.”
It adds: “No state or local agency, municipal or county governing authority shall restrict, revoke, suspend or otherwise infringe upon the right of a person to own, purchase or possess a firearm, ammunition, or firearm accessories or any related firearms license or certification based solely on their status as a medical marijuana patient or caregiver licensee.”
Even so, the Oklahoma law doesn’t supplant the current federal policy. Before the law was signed, the Tulsa World reported, lawmakers “acknowledged during talks on the House floor that it remains a federal offense to possess cannabis and a gun at the same time.”
“Drug Scheduling.” U.S. Drug Enforcement Agency. Accessed 23 Apr 2019.
Firearms Transaction Record | ATF E-Form 4473. U.S. Department of Justice – Bureau of Alcohol, Tobacco, Firearms and Explosives. Accessed 23 Apr 2019.
Garrand, Danielle. “Medical marijuana or guns? Oklahoma latest state forced to choose.” CBS News. 29 Jun 2018.
Kleiman, Mark. Professor of public policy, NYU Marron Institute of Urban Management. Email to FactCheck.org. 24 Apr 2019.
O’Keefe, Karen. Director of state policies, Marijuana Policy Project. Email to FactCheck.org. 23 Apr 2019.
“Open letter to all federal firearms licensees.” U.S. Department of Justice – Bureau of Alcohol, Tobacco, Firearms and Explosives. 21 Sep 2011.
“Recreational Marijuana in Maine.” Maine State Legislature. Accessed 24 Apr 2019.
U.S. Government Accountability Office. “Few Individuals Denied Firearms Purchases Are Prosecuted and ATF Should Assess Use of Warning Notices in Lieu of Prosecutions.” September 2018.
Wilson v. Lynch. No. 14-15700. U.S. Ninth Circuit Court of Appeals. 31 Aug 2016.
“Winthrop Man Pleads Guilty to Making False Statements to a Federal Firearms Dealer.” Press release, U.S. Attorney’s Office, District of Maine. 24 Sep 2018.