With voter approval of State Question 788, Oklahoma gun owners join residents of 25 other states in a conflict between state and federal laws governing guns and marijuana.
“My phone has been burning up with it,” said Don Spencer, president of the Oklahoma 2nd Amendment Association. “I’ve had a lot of questions from people about concealed carry, and at this point it looks like you can still acquire a permit to carry in Oklahoma, but it would still be a federal crime if you own, possess or carry a gun.”
The problem is that it is a violation of federal firearms and drug enforcement laws to possess both marijuana and a firearm. With more than half the households in Oklahoma reporting someone in the home owns a gun, conflict over the laws in this state seems inevitable.
“I said six months ago we weren’t going to deal with this unless it passed, and doggone if it didn’t. Now I’m diving in,” Spencer said. “There are a lot of moving parts.”
The law dates back to the 1993 Brady Act, which amended the Gun Control Act of 1968 to reference provisions of the Controlled Substances Act, stating that “it shall be 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, any controlled substance.”
That led the ATF to amend its Form 4473, which is required for purchase of a firearm through any dealer. It asks whether the applicant is an unlawful user of marijuana. Medical marijuana card holders are required to answer “yes,” and they will be unable to buy a firearm, according to a notice from the Bureau of Alcohol, Tobacco, Firearms and Explosives issued in 2011.
The ATF sent that notice to gun sellers to emphasize that marijuana is a controlled substance and warned that possession of a medical marijuana card is evidence that someone is an “unlawful user of a controlled substance.”
The U.S. Department of Justice issued guidance to federal prosecutors concerning enforcement around guns and marijuana in 2009 and 2011 and last updated the guidelines in August 2013.
The 2013 memorandum emphasizes eight priorities, such as “preventing violence and the use of firearms in the cultivation and distribution of marijuana,” and notes that outside those priorities the federal government has traditionally relied on states and local law enforcement agencies.
It does emphasize that there is federal expectation that the states allowing medical marijuana have adequate enforcement systems in place so cultivation, distribution, sale and possession issues are “less likely to threaten the federal priorities.”
Further, it states that it is “not an efficient use of federal resources to focus enforcement efforts on seriously ill individuals, or their individual caregivers.”
However, the memorandum also states that nothing precludes prosecution, even in the absence of the listed priorities.
Spencer said his group will be watching the issues, and the evolution and enactment of the medical marijuana law. He has been in touch with Oklahoma’s legislative leadership and will be involved should a special session take place this summer, he said.
A meeting is set with the group’s attorneys on Friday to discuss legal matters.
“Part of what we’ll be talking about is what other states have done,” he said. “If there is an existing suit we can dogpile on top of, that’s a possibility. At this time I would say ‘no’ to us creating a suit of our own, but this is new, and for a lot of it we still have to wait and see.”
States have approached the issue differently, and some have complained that patients unwilling to surrender their guns or risk prosecution are left out in the cold.
Hawaii and Illinois both started out with orders to medical marijuana users to surrender their guns, but both have since said they will reconsider how they will proceed.
In Nevada, a medical marijuana patient challenged the law when a gun store refused to sell her a firearm in 2011, but the 9th U.S. Circuit Court of Appeals in 2016 ruled that a federal government ban of gun sales to state-legal medical marijuana patients does not violate the Second Amendment.
In Pennsylvania and Arkansas, the states keep patient information private but still warn applicants for medical marijuana about the conflict between the state and federal laws.
The language of Oklahoma’s medical marijuana measure, as it currently reads, states only that “the State Department of Health will ensure that all application records and information are sealed to protect the privacy of medical license applicants.”
President Donald Trump has recently indicated he will likely support a congressional effort that would give states autonomy over their marijuana laws. A bill introduced earlier this month by Sens. Cory Gardner, R-Colo., and Elizabeth Warren, D-Mass., would protect states that have legalized marijuana from federal interference.
Spencer said Oklahoma gun owners who need marijuana to treat serious medical issues simply should not face such a problem.
“Personally I think a person that is peaceful in their own home, if they have a medical prescription and own a firearm, and whether it’s alcohol or prescription drugs, I don’t think that there should be any repercussions from that.”