Can Texas Medical Marijuana Users Own a Gun or have a CWP?
Can patients with a Texas medical marijuana card buy or own guns? If Texans had their way, the answer would be yes. However, the federal government says otherwise. This article covers why federal gun laws trump state laws as they pertain to medical marijuana use and gun ownership.
If you’re a gun owner, or you’re considering buying a gun, you really need to read this before applying for a Texas medical marijuana card, which is actually a prescription at this point. We Texans are known for being highly protective of our Second Amendment rights. Nonetheless, even here, medical marijuana patients are forced to choose between the relief of unbearable pain and their inalienable right to bear arms.
Marijuana is a Schedule I controlled substance at the federal level. Nonetheless, many states within the U.S. have legalized marijuana for medical and recreational use. Fortunately, Federal agencies such as the Drug Enforcement Agency (DEA) have been directed not to harass state-licensed medical marijuana companies. However, another federal agency, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) is not so “420-friendly.”
Texas gun laws and medical marijuana
The state of Texas recently expanded its medical marijuana program (the Compassionate Use Act) to accommodate patients with several qualifying conditions. In addition to epilepsy and other seizure disorders, marijuana inhalers, extracts, and oils with up to 0.5% THC content are now available to patients with other debilitating ailments such as MS, Parkinson’s disease, ALS, spasticity, incurable neurodegenerative disease, and cancer.
State Rep. Stephanie Klick one of the Compassionate Use Act authors and a gun advocate claims that she wrote the bill with seriously debilitated patients in mind. Klick says she is doubtful that patients suffering from such debilitating conditions will want to buy guns.
“These are very sick people,” she said. “People with spasticity have mobility issues. People with ALS over time will become ventilator-dependent. They’re not going to go out and buy guns.”
But the fact of the matter is that some Texas medical marijuana patients with debilitating diseases still wish to exercise their Second Amendment right to own guns.
The Texas director for Gun Owners of American, Rachel Malone was succinct in her response to these draconian measures: “To tell Texans you can’t purchase a firearm if you have a compassionate use card is unconscionable. We should not force people to choose between gun ownership and taking care of themselves.”
Unfortunately, those patients are at the mercy of the federal government — not the state government — until marijuana is no longer categorized as a Schedule I Controlled substance.
Federal gun laws and medical marijuana
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 gun owners and sellers that regardless of what the law of an individual state says, federal law still classifies marijuana as a Schedule I controlled substance.
In order to purchase a gun in Texas (or any other state), buyers must fill out a federal background check application. The form asks if the buyer uses or is addicted to “marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance.”
You may think you can answer “no” because marijuana is legal in your state. However, the application goes on to state, “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.”
If patients answer truthfully, Texas gun dealers are not permitted to sell the patient a gun. And if the patient lies, they can be prosecuted for falsifying information on their background check — a crime punishable by up to 5 years in prison.
Moreover, anyone who already possesses a gun and uses medical marijuana is in violation of Title 18, United States Code, Section 922. A conviction comes with up to 10 years in prison and up to $250,000 in fines.
Furthermore, a conviction for possession of marijuana within the last year, past arrests for similar violations within the past 5 years (if the most offense took place in the past year), or testing positive for a controlled substance within a one year period will also negate the right to purchase a gun.
Texas LawShield Independent Program Attorney, Edwin Walker, breaks down the latest gun laws as they relate to medical marijuana patients:
- U.S. Code Title 18 U.S.C Section 922, subsection (d) 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 any person who uses a controlled substance and has lost the power of self-control with reference to the use of the 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.
What will it take to make gun ownership legal for Texas medical marijuana patients?
To date, federal courts maintain their stance that denial of gun purchase due to medical marijuana use in no way violates Second Amendment rights. In fact, in 2016, the 9th Circuit Court of Appeals defended the prohibition of marijuana in regard to gun use and claimed that the substance is linked to “irrational or unpredictable behavior.”
So, what will it take to change gun laws as they relate to marijuana use? Actually, federal gun laws don’t need to change at all. The change needs to come in federal marijuana laws. If the federal government removes marijuana from its list of controlled substances, then the ATF will have no say in the matter and the verbiage on background check forms will have to be revised.
However, there does seem to be a light at the end of the tunnel, so to speak. With the incoming Biden-Harris Administration and Democratic control of Congress federal marijuana policy reforms seem all but imminent. Although reforms might come in incremental steps, cannabis investors are betting the farm, so to speak, that the Democrats will do the right thing and decriminalize marijuana at the federal level.
Texas, too, seems to be moving toward a more liberal stance on marijuana and guns. This is thought to be due to the fact that the number of people immigrating to Texas from more liberal states such as California is on the rise.
Although Texas is far behind most states with medical marijuana programs with it’s low-THC limits, the state does seem to be moving, along with the rest of the country, in the direction of becoming more liberal when it comes to marijuana laws. Witness the expansion of the medical marijuana program and the legalization of hemp.
There is also talk among advocates and Texas lawmakers alike about potentially legalizing marijuana for adult use in Texas. Although that, alone, won’t make gun ownership legal for Texas medical marijuana patients, it will be another giant leap in the right direction.
(On a side note, Texans should keep in mind that the 0.5% THC limit on medical marijuana products is only 0.2% higher than the limit for hemp derived CBD products. It might be easier for gun owners to forgo the medical marijuana card and stick with hemp CBD until the federal government loosens up. Hemp CBD oil is legal in Texas. As such, all Texans regardless of their medical condition can buy CBD oil online and have it delivered to their doorstep.)