A Second Amendment controversy surrounding the limits of gun ownership seems to always be simmering in the social shadows. It may, and should, become an issue in the current broiling presidential campaign.


But what are the implications of unfettered gun ownership in states that have legalized recreational or medical marijuana, considering federal law still considers marijuana a controlled substance?


Twenty-three states and the District of Columbia have legalized medical marijuana. Four states have also legalized marijuana for recreational and personal usage while a number of states have decriminalize personal marijuana use by replacing criminal penalties with civil fines.


In 2008, the U.S. Supreme Court in the District of Columbia v. Heller held that the Second Amendment codified a “pre-existing” right in this country to keep and bear arms. The court added that this right, rooted in the right of self-defense, is undeniable in the home “where the need for defense of self, family, and property is most acute.”


But can legalized marijuana, used for either medical or recreational purposes, coexist in the family home with gun ownership?


Section 922(g) (3) of Title 18 of the United States Code makes it unlawful for a person to possess a firearm “who is an unlawful user of or addicted to any controlled substance.”


In September 2011, the Bureau of Alcohol, Tobacco, Firearms and Explosives issued a public letter, in response to gun owner queries, that any kind of marijuana is a “controlled substance” within the meaning of Section 922(g)(3).  Therefore, “any person who uses or is addicted to marijuana, regardless of whether his or her state has passed legislation authorizing marijuana use for medicinal purposes, is an unlawful user of or addicted to a controlled substance, and is prohibited by federal law from possessing firearms or ammunition.”


According to the Washington Post, the ATF letter caused Montana’s Attorney General to fire off a letter to the U.S. Attorney General’s Office arguing that the “policy raises ‘serious legal issues under the Second Amendment, and the Equal Protection and Due Process clauses of the Fifth Amendment.’”


Two years before the ATF letter, Benjamin Tod Carter was living in a two-unit apartment building in a “suspected drug activity” area in Charleston, West Virginia. In 2009, the building experienced a burglary and one of its residents was shot eight times. Carter was a 15-year marijuana user. That made him consider his vulnerability to drug-related violence. In the wake of the Heller decision, he purchased a semi-automatic and a revolver for self-defense purposes.


Upon receiving information about drug activity in Carter’s building, the local police decided to investigate. They knocked on doors and spoke to the residents who responded to their knocks. One of those residents was Carter who openly admitted that he had marijuana and weapons in his apartment. He let the police enter his apartment and search it. The search discovered both the marijuana and the firearms.


Carter was placed under arrest. State authorities quickly turned him over the federal authorities who secured an indictment under Section 922(g) (3). Invoking the Heller decision, Carter’s attorney moved to dismiss the charges on the proposition that the Second Amendment authorized him to have the firearms in his residence for self-defense. The U.S. district court denied the motion. In August 2009, Carter entered a conditional guilty plea preserving his right to appeal the Second Amendment claim. He received a three-year probated sentence.


Carter’s case wound its way through the appeals process before, in April 2014, the Fourth Circuit Court of Appeals found there is a casual connection between drug usage and violence sufficient to find that Section 922(g)(3) trumped the Second Amendment’s right of self-defense. The appeals court premised its decision on what it called four “commonsense notions”:


  • that drug users are more likely to encounter law enforcement;
  • that their criminal associations increase the risk of violence;
  • that the high price of drugs is likely to lead to violent property crimes; and
  • that drug use impairs judgment.


The appeals court categorically rejected Carter’s argument that “marijuana users are not prone to violence.” The court explained:


“We have little trouble concluding that the studies presented to the district court by both the government and Carter indicate a strong link between drug use and violence.  A study by Carrie Oser and colleagues, offered by the government, found that probationers who had perpetrated violence in the past were significantly more likely to have used a host of drugs — marijuana, hallucinogens, sedatives, and heroin — than probationers who had never been involved in a violent episode. A 2004 survey of prisoners by the Bureau of Justice, again offered by the government, found that almost 50% of all state and federal prisoners who had committed violent felonies were drug abusers or addicts in the year before their arrest, as compared to only 2% of the general population. That survey also found that inmates who were dependent on drugs or abusing them were much more likely to have a criminal history. The government also presented a study by Lana Harrison and Joseph Gfroerer, which found that individuals who used marijuana or marijuana and cocaine, in addition to alcohol, were significantly more likely to engage in violent crime than individuals who only used alcohol. And finally, the government presented a study by Virginia McCoy and colleagues, which found that chronic cocaine and opiate users were more likely than nonusers to engage in robbery and violence.”


Two months after the Carter ruling, U.S. Sen. John Walsh, D-Mont., introduced legislation intended to overturn the 2011 ATF letter by prohibiting federal funds from being used to prosecute gun owners who are registered medical marijuana users. The legislation did not cover recreational marijuana users. Montana and national medical marijuana advocates hailed the legislation.


“Montanans take their Second Amendment rights very seriously and hunting is an important part of our heritage and culture,” said Chris Lindsey, a legislative analyst for the Marijuana Policy Project.


Two months later, presidential candidate and U.S. Sen. Ted Cruz, R-Tex., offered tepid support for the Walsh legislation. The Walsh legislation has apparently stalled in the bureaucracy of Congress. This means a law-abiding rancher in Montana who uses marijuana to ease the effects of chemotherapy for his prostate cancer cannot possess his legally-purchased .30-.30 caliber rifle to protect his family and livestock from predators.


It doesn’t seem right to us that the Carter rule can be stretched to apply to that Montana rancher or to other law-abiding individuals living in states that have legalized marijuana for medical or recreational purposes.  It is time for the federal government to recognize state decisions regarding legalizing marijuana and stop federal prosecutions related to the possession, use, distribution or farming of marijuana in those states.