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Concealed Carry & Medical Cannabis In Florida

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. 

Comments

Google Reply
September 29, 2017

Google

The information talked about within the write-up are some of the best accessible.

Phil Dru III Reply
December 3, 2017

Who will be the first in the 11th circuit to test the conflict?

youandyourlittledog Reply
January 9, 2018

good comment, my name is not Briar rabbit and I am not likely to be thrown into the briar patch by Briar fox. This is why the US is so messed up…. The congress and senate could simply remove marijuania from schedule one…. why dosen’t Nelson step upand do this….

Clint Reply
January 31, 2018

Being wrong would be hell but beginning right could be just as much hell by the time you got out of court and had to pay all those legal fees.

youandyourlittledog Reply
September 7, 2018

your comment reminds me of some of the federal law language being bantered around in the current supreme court nomination debacle. Listening to the nomine discuss severability and undo burden reinforces that nothing is simple and the construction of the political system can never be transparent. It is a laugh on us people of the United States when the nominee says to put it in lay terms, that the system was never intended to be fixed

Robert Burn Reply
April 26, 2018

Bill Nelson will not move to change the law because he is dedicated to removing the second amendment as are all democrats.

laudvette Reply
July 27, 2018

Exactly! Nelson has done literally nothing for Florida the entire time in office. He is a huge disappointment. He rubber stamps everything regardless of content. Totally pathetic! Vote him out!!!

Maryann Santo
September 7, 2018

http://floridapolitics.com/archives/273939-bill-nelson-files-bill-to-get-veterans-access-to-medical-cannabis look at this

Tom Wolfe
January 26, 2019

He’s gonzo now!!! $

Maryann Santo Reply
September 7, 2018

http://www.tampabay.com/florida-politics/buzz/2018/05/31/bill-nelson-allow-smokeable-medical-marijuana-in-florida/ http://floridapolitics.com/archives/273939-bill-nelson-files-bill-to-get-veterans-access-to-medical-cannabis I want you to check this out

Clint Reply
January 31, 2018

I agree with you Phil it isn’t worth the large lawyer bill we would have to pay win or lose.

What You Need to Know About Medical Marijuana & Firearms – Girls Can Carry Reply
January 5, 2018

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Medical Marijuana: ‘We Won’t Take Guns Away’ – The K-Var Armory Reply
January 10, 2018

[…] to VenicCare.com, in October 2016, the Bureau of Alcohol, Tobacco, Firearms and Explosives amended the Form 4473 to […]

Clint Reply
January 31, 2018

What will “Legal” and Low-Dose Marijuana law do to gun rights? You will also want to read this from a Lawyer in Florida. https://www.rabbylaw.com/how-legalized-marijuana-affects-gun-rights/

Amy Peters Reply
July 25, 2018

What happens if I have a medical marijuana card and my husband has guns in the house. Is that considered as me having a gun in my possession?

Tin Man 2 Reply
August 21, 2018

I have Restless Leg Syndrome, and read that marijuana is medically recognized to treat this. I’ll pursue other treatment options and keep my Second Amendment rights, thank you.

Maryann Santo Reply
September 7, 2018

http://floridapolitics.com/archives/273939-bill-nelson-files-bill-to-get-veterans-access-to-medical-cannabis
Great

Maryann Santo Reply
September 7, 2018

Great
Great

FLGreg63 Reply
December 28, 2018

I believe those in the pro-Canna camp need to stop using patent answer/dodge “…a plant that has caused no cases of overdose and has no recorded fatalities”.

It is simply intellectually dishonest and misleading. Just because a substance is not lethal in high doses does not make less dangerous when not used properly. You might want to ask the families of Levi Pongi and Kris Kirk about that.

Anyone who has any knowledge of this (like you should) know that there are few cannabinoid receptors in the lower brain stem that control cardiovascular and respiratory functions. However, these receptors are all over the rest of the brain and body and can cause all sorts of issues that you fail to mention.

So, yes – carrying a medical marijuana card and a concealed weapon card is a bad, bad idea.

Florida Medical Marijuana Legislation Stalls As Public Employees Are Fired For Legal Use – Suwanee Florida Reply
April 28, 2021

[…] medical marijuana law says that the use by a qualifying patient “is not subject to criminal or civil liabilities or sanctions.” However, Michael Minardi, a Tampa attorney who specializes in cannabis crimes, sees job loss as […]

La législation sur la marijuana médicale en Floride s'arrête alors que des employés du secteur public sont licenciés pour usage légal – Un endroit pour le tabac, la marijuana et la vie Reply
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[…] médicales stipule que l’utilisation par un patient admissible «n’est pas soumise à responsabilités ou sanctions pénales ou civiles. » Cependant, Michael Minardi, un avocat de Tampa spécialisé dans les crimes liés au cannabis, […]

Florida medical marijuana legislation stalls as public employees are fired for legal use – Lyricsmint.xyz Reply
April 29, 2021

[…] medical marijuana law says that the use by a qualifying patient “is not subject to criminal or civil liabilities or sanctions.” However, Michael Minardi, a Tampa attorney who specializes in cannabis crimes, sees job loss as […]

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