Concealed Carry & Medical Cannabis In Florida

February 26, 2017Compassionate Cannabis ClinicLegal

One of the most often repeated questions within our clinic is “what about my concealed carry and getting my medical marijuana card?”

A simple Google search will turn up enough articles to sufficiently scare any gun owner or CCW licensee.

But what is the straight truth?

I’ve done some comprehensive digging to find some solid answers for those patients in Florida understandably concerned about their right to bear arms and their newly legal right to incorporate cannabis into their treatment of chronic, debilitating issues.

Form 4473

The crux of the issue rests with the Federal government’s designation of cannabis, it’s seeds, and derivatives as a Schedule I controlled substance.

The Controlled Substances Act (CSA) states that chemicals of this class and designation have “no accepted medicinal use” and can’t be used safely even under the supervision of a physician.

While this may make sense for other Schedule I substances such as heroin, science can agree this is not a proper designation for a plant that has caused no cases of overdose and has no recorded fatalities.

In order to legally purchase a firearm in the United States, an individual must complete a Firearms Transaction Record (form 4473). Question 11(e) on this form asks:

Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?

Any individual that lies anywhere on the FTR application has committed a felony and, if convicted, faces a mandatory 5-year Federal prison sentence. If you are a legal medical marijuana patient and answer truthfully, there is a chance that the application will not be approved.

In October 2016, the Bureau of Alcohol, Tobacco, Firearms and Explosives amended the Form 4473 to add the following to Question 11(e):

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.

Also last August, the 9th Circuit Court of Appeals upheld the Federal government’s prohibition on legal cannabis users’ right to purchase firearms.  This ruling is often cited within Google searches, but what is often overlooked is the simple fact that the court’s jurisdiction extends only over the circuit that it represents – 8 western states.

The judiciary utilized some old government propaganda to make their case:

The 9th Circuit in its 3-0 decision said Congress reasonably concluded that marijuana and other drug use “raises the risk of irrational or unpredictable behavior with which gun use should not be associated.”

In Florida, where the 11th Circuit Court is the upper-most authority before the SCOTUS, I could find no similar case precedence to cite.

Interestingly, I did find quite a few cases where the Court favorably ruled for medical marijuana patients – including a 2016 case where the Court asserted a patient had the right to use both pain medication and cannabis together as a normal course of treatment.

Florida Firearm Ownership & Medical Marijuana

Within the state’s own firearms application, the following disqualification is found:

Unlawful user or addicted to any controlled substance.

Section 29(a)(1) of the Florida Constitution clearly states:

The medical use of marijuana by a qualifying patient or caregiver in compliance with this section is not subject to criminal or civil liability or sanctions under Florida law.

Since the law is clear as to the rights of a qualified patient or caregiver, it is our opinion that within the above referenced question in the state firearms application, an individual that is qualified by an authorized physician would not be considered an “unlawful” user as the asked within the form.

Concealed Carry, Florida, & Medical Marijuana

With their decision, the Federal 9th Circuit Court also asserted:

It’s reasonable for federal regulators to assume a medical marijuana card holder was more likely to use the drug.

There is case precedent to establish that the Federal government could conceivably pour through state databases and revoke firearms permits, however this is logistically unlikely. Conversely, the Feds could institute a cross-reference protocol into the firearms application procedure that could tap into state patient databases and reject applications for medical marijuana users. Both scenarios are purely hypothetical, as there is no record of such policies existing currently.

The Federal government has little authority over state legislated concealed carry programs.

The state of Florida would have to exclude, via legislation, qualified medical marijuana patients from holding a concealed carry permit. This legislation does not currently exist.

Within the eligibility requirements of Florida’s concealed carry program, are two stipulations that could apply to medical marijuana patients:

• A conviction for violation of controlled substance laws or multiple arrests for such offenses.
• A record of drug or alcohol abuse.

Since Amendment 2 clearly prohibits the potential of “criminal or civil liability or sanctions” against qualified medical marijuana patients, our opinion is that the first eligibility requirement does not apply. As for the second disqualifier, a “record of drug or alcohol abuse” would require prior criminal charges that a qualified patient would not be subject to after they’re entered into the Compassionate Use system provided they stay within the boundaries of the program.

Sheriff Raids

While Google searching for an answer to the statement, “I’ve heard Sheriff’s departments are showing up at medical marijuana patient’s homes and taking their concealed carry”, I could not find any sourced references to this practice actually happening in the US.

Much of the actual controversy seems to be brought about by local law enforcement officers trying to enforce law that doesn’t exist, and the courts have not been in favor of such practices.

In 2011, the Oregon Supreme Court ruled against a sheriff’s department for not granting four medical marijuana patients concealed carry permits.

Similar to Florida’s regulation, Oregon code specifies “‘an unlawful user … of any controlled substance’ can’t own a gun.” The Sheriff argued unsuccessfully that Federal law overrode state law. The state’s top court did not agree, not surprising many within the legal community as state’s have the right to craft and enforce their own unique legislation.

State’s rights were again upheld in Illinois in 2014 when the state erroneously told concealed carry holders to hand in their guns.

There is no current precedent for any such behavior by law enforcement within Florida. And, if there ever is, the court system will likely side with patients as has been the case in many other states with legal marijuana programs.

What does it all mean?

Until the Federal government rejects it’s self made propaganda and designates cannabis out of the Schedule I category, there will always be a chance for Federal/state conflict.

Explicitly, the ATF’s firearms application is pretty straightforward. If you use cannabis in a legal or illegal fashion and answer truthfully on the application, you likely will not be approved to purchase the weapon.

With the clear protections now in place for qualified patients within Florida, the likelihood of any state or local interference involving concealed carry permits and medical marijuana patients is slim and the patient’s right to carry arms for self defense will most likely be affirmed within the courts should there ever be a challenge.

The preceding article has been written by Compassionate Cannabis Clinic’s Executive Director, Patrick DeLuca, and has been offered as a simple opinion. For a more detailed interpretation, we advise patients to consult with an attorney.