Firearms and Medical Marijuana: What is the Law in Texas?

Video Transcript.

Legalization of medical and recreational marijuana have been spreading across the states, leading to increased struggles between state and federal legislation. But what does this mean for responsible gun owners? Texas LawShield Independent Program Attorney, Edwin Walker, breaks down the latest in Texas law for the use of marijuana and owning firearms.

The United States Code Title 18 U.S.C. Section 922 states in Subsection (d) that a person cannot transfer a gun to someone who is an unlawful user of or addicted to a controlled substance including marijuana. Subsection (g) states that a person cannot be an unlawful user of or addicted to a controlled substance including marijuana and possess a gun.

Unlawful user of or a person addicted to any controlled substance is defined in 27 CFR 478.11 and includes: A person who uses a controlled substance and has lost the power of self-control with reference to the use of 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. Such use is not limited to the use of drugs on a particular day, or within a matter of days or weeks before, but rather that the unlawful use has occurred recently enough to indicate that the individual is actively engaged in such conduct.

A person may be an unlawful current user of a controlled substance even though the substance is not being used at the precise time the person seeks to acquire a firearm or receives or possesses a firearm. An inference of current use may be drawn from evidence of a recent use or possession of a controlled substance or a pattern of use or possession that reasonably covers the present time

Some examples include a conviction for use or possession of a controlled substance within the past year; multiple arrests for such offenses within the past 5 years if the most recent arrest occurred within the past year; or persons found through a drug test to use a controlled substance unlawfully, provided that the test was administered within the past year.

With the wave of states that are legalizing marijuana for medicinal use, and decriminalizing it for recreational use, the ATF has continually sought to remind people that regardless of what the law of an individual states says, federal law still classifies marijuana as a Schedule I controlled substance.

In an Open Letter dated September 21, 2011, the ATF reminded all FFLs that transferring a firearm to a person who has a state-issued medical marijuana card is against the law, and a person must answer “Yes” to question 11e on the Form 4473. The ATF ultimately followed this up with a warning printed in bold letters on the Form.

The warning says: 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.

Not only does this serve as a reminder of the preeminence of federal law, but also would be very good evidence to use in a prosecution for perjury, in the event a medical marijuana user answers “No” to this question.

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 where Texas sits, have ruled on this issue as of the date of the publication of this video.

While there has been an increase in political action to change the marijuana laws in Texas including the Compassionate Use Act of 2015 which allows doctors to prescribe “low THC cannabis” to qualified patients, it remains a criminal offense for anyone to be in possession of a usable quantity of marijuana. If a person has both marijuana and a handgun, without an LTC, in their motor vehicle or boat, they will be charged with unlawful possession of a weapon. In addition, it remains unlawful to possess a handgun while intoxicated, including as a result of marijuana use.

While individual states may ultimately loosen or abolish their own laws regarding marijuana, 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.

Therefore, until this law changes, guns and marijuana don’t mix. If you have questions about this issue, or any other self-defense related topics, call Texas LawShield, and ask to speak to an Independent Program Attorney.

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