License to Carry and Medical Marijuana Card in Massachusetts

May 28, 2019

Have your firearm license been denied or revoked because you were in possession of a “legal” medical marijuana card in Massachusetts? Read on.

In 2011, the Bureau of Alcohol, Tobacco, Firearms and Explosive (BATFE), posted an open letter stating that 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.” 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.”
See, https://www.atf.gov/firearms/docs/open-letter/all-ffls-sept2011-open-letter-marijuana-medicinal-purposes/download

BATFE’s letter also stated that “herefore, 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.”

Whether you like it or not, the federal government, not states, regulates drugs through the Controlled Substances Act (CSA) (21 U.S.C. § 811). The CSA does not recognize the difference between medical and recreational use of cannabis and cannabis is treated like every other controlled substance. Under the CSA, every controlled substance in a schedule. Cannabis is classified as a Schedule I drug.

18 U.S.C. § 922(g)(3) makes it a felony for an “unlawful user of … any controlled substance” to “possess … any firearm,” and since marijuana is classified as a Schedule I controlled substance, it is a felony for a user of marijuana to possess a firearm.

First glance at the BATFE’s website says that BATFE's responsibilities are “the investigation and prevention of federal offenses involving the unlawful use, manufacture, and possession of firearms and explosives; acts of arson and bombings; and illegal trafficking of alcohol and tobacco products. The ATF also regulates, via licensing, the sale, possession, and transportation of firearms, ammunition, and explosives in interstate commerce. Many of ATF's activities are carried out in conjunction with task forces made up of state and local law enforcement officers, such as Project Safe Neighborhoods.”

In 2016, in it’s open letter, BATFE reinforced it’s stance on marijuana.

If you look up a federal firearm transaction form, the federal firearms licensees, such as gun shops, are charged to determine whether a sale is lawful. Since the “use or possession of marijuana remains unlawful under Federal law regardless” of Massachusetts’s policies. See, https://www.atf.gov/file/61446/download

Question 11(e) says:
“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.”

In Wilson v. Lynch (2016), the Ninth Circuit upheld the constitutionality of § 922(d)(3) as it applies to medical marijuana cardholders. (Similar to § 922(g)(3), § 922(d)(3) makes it unlawful to sell a firearm to anyone who is “an unlawful user of or addicted to a controlled substance.”)

Let’s try it again. The United States Constitution contains a Supremacy Clause. Under the Supremacy Clause, Article VI, Clause 2 of the United States Constitution, the Constitution, federal laws made pursuant to it, and treaties made under its authority, constitute the "supreme law of the land". This means that state constitutions are subordinate to federal law. Even though Massachusetts decriminalized marijuana use, the G.L. c. 140 Sec 131 (e) requires a licensing authority to determine whether the possession of a firearm by an LTC application would be a violation of state or federal law.

Short answer, don’t give a hard time to your local licensing authority for being unable to give you the firearms license if you hold a medical marijuana card.

Now, you know!

If you want to apply for a firearms license, your application got denied or your license revoked, contact attorney Smirnova’s office to schedule a consultation.

Margarita Smirnova
Call: (617)398-7482
E-mail: margarita.smirnova@gmail.com

Disclaimer: This post is for informational and educational use only and does not create attorney-client relationship.

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