Medical Marijuana and Gun Ownership: A Legal Conundrum in Kentucky
(and everywhere else, too)
February 1, 2025
By: Jonas Bastien
Kentucky’s medical marijuana program kicked off on January 1, 2025. While the overwhelming support and excitement across the Commonwealth for this new program is clear, Kentuckians may be unaware of the implications that could result from their participation in the medical marijuana program. The issue stems from the impact of U.S. federal law, which still classifies marijuana as a Schedule I drug (meaning it is illegal under federal law) and Kentucky’s medical marijuana program which allows medical marijuana patients, or cardholders, to purchase and possess medical marijuana.
This creates a confusing legal landscape that can affect the rights of Kentucky citizens, particularly when it comes to participating in the medical marijuana program and those patients’ right to bear arms under the Second Amendment to the U.S. Constitution. This dilemma forces many Kentuckians to choose between the use of medicinal cannabis and their Second Amendment rights—a choice that echoes a broader national conversation about federalism and our individual liberties under both the US Constitution and the lesser-known Kentucky Constitution.
As a result, Kentuckians should be informed, and aware, that by participating in Kentucky’s medical marijuana program their ability to own and bear firearms will be negatively impacted.
- Federal Firearms Law vs. State Medical Marijuana Law
The right for medical marijuana users to bear firearms is controversial. Although the Second Amendment of the U.S. Constitution guarantees “the right of the people to keep and bear Arms, shall not be infringed” the Gun Control Act of 1968 prohibits individuals who are “unlawful users of or addicted to any controlled substance” from owning or possessing firearms. As marijuana is currently a Schedule I drug under federal law, any medical or recreational user is prohibited from owning or possessing a gun.
The Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) released an “Open Letter to All Federal Firearms Licensees” on September 21, 2011, which has recently come back into the spotlight, addressing a number of inquiries the ATF received regarding the use of marijuana for medicinal purposes and the applicability of federal firearms laws.
The Open Letter was published after a number of states across our country passed legislation allowing under state law the use or possession of marijuana for medicinal purposes, and some of these states issuing a card which authorizes the holder to use or possess marijuana under state law.
Federal law, specifically 18 U.S.C. § 922(g)(3), prohibits any person who is an “unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802))” from shipping, transporting, receiving or possessing firearms or ammunition. Marijuana is listed in the Controlled Substances Act as a Schedule I controlled substance, and there are no exceptions in Federal law for marijuana purportedly used for medicinal purposes, even if such use is sanctioned by State law. Further, Federal law, U.S.C. § 922(d)(3), makes it 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 a controlled substance. As provided by 27 C.F.R. § 478.11, “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 reasonable covers the present time.”
Therefore, as the Open Letter states, any person who uses or is addicted to marijuana, regardless of whether his or her State has 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. Such persons should answer “yes” to question 11.e. on ATF Form 4473 (August 2008), Firearms Transaction Record, and you may not transfer firearms or ammunition to them. Further, if you are aware that the potential transferee is in possession of a card authorizing the possession and use of marijuana under State law, then you have “reasonable cause to believe” that the person is an unlawful user of a controlled substance. As such, you may not transfer firearms or ammunition to the person, even if the person answered “no” to question 11.e. on ATF Form 4473. (Question 11.e. is now marked as Question 21.f. as shown on the most recent ATF Form 4473).
Question 21.f. on ATF Form 4473 reads:
Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance? 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.
Question 21.f. contains a clear directive regarding the use or possession of marijuana, in light of the federal prohibition and marijuana’s classification as a Schedule I substance under the Controlled Substances Act.
The Open Letter instructs gun dealers not to sell firearms or ammunition to individuals who admit to marijuana use on Form 4473. This means that medical marijuana patients, even those with a valid prescription, may not be eligible to purchase firearms.
As a result, “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.”
- ATF Statements
In a story originally published by WDRB on December 11, 2024, ATF Special Agent AJ Gibes provided statements clarifying the ATF’s position on the legal implications of gun ownership by medical marijuana card holders.
“You cannot possess firearms and ammunition and also be a user of marijuana,” ATF Special Agent AJ Gibes said, referring to a federal statute requiring gun purchasers to fill out an ATF Form 4473 that includes a question about whether they are an active marijuana consumer. If the purchaser marks yes, they’re disqualified from owning the firearm.
Notably, ATF Special Agent Gibes stated that while people who already own a gun aren’t “expected to” turn them over if they become state-legal cannabis patients, those who “wish to follow federal law and not be in violation of it” must “make the decision to divest themselves of those firearms.”
He added that the ATF is “not actively seeking and working solely on investigations involving just the possession of firearms and marijuana because of our finite resources,” but that doesn’t change the law, and people will still be at risk of prosecution if they violate it.
- Current Legal Trends and their Implications
Despite federal law making it illegal for marijuana users to possess firearms, the law on this issue continues to evolve.
In February 2023, U.S. District Judge Patrick Wyrick, an appointee of former Republican President Donald Trump in Oklahoma City, dismissed an indictment against Jared Harrison, who was charged with violating a federal law that prohibited marijuana users from possessing firearms in August 2023. (Case No. CR-22-00328-PRW) Judge Wyrick opined on the ban, saying it infringed upon Mr. Harrison’s right to bear arms under the U.S. Constitution’s Second Amendment.
In Case No. CR-22-00328-PRW, the United States prosecutor made the following arguments:
- Marijuana is illegal under federal law;
- Anyone that uses marijuana is a lawbreaker; and
- Lawbreakers aren’t part of “the people” whose rights are protected by the Constitution.
- Therefore, marijuana users aren’t entitled to Second Amendment rights.
In Judge Wyrick’s 54-page Order, he wrote, “stripping someone of their right to possess a firearm solely because they use marijuana is inconsistent with the Nation’s historical tradition of firearm regulation.” Lawful possession of marijuana under state law does not categorically render Mr. Harrison a presumptively risky person requiring restriction of his right to possess a firearm and there is no historical tradition or law requiring disarming person solely based on federal felonious conduct. Instead, Second Amendment restrictions are based in support of disarming person that demonstrated violent, forceful, or threatening conduct.
While Mr. Harrison’s did not exhibit any of this conduct, the US government’s argument focused on making “possession” of a gun the crime itself, which the Court found was an unconstitutional restriction on Mr. Harrison’s right to bear arms.
Judge Wyrick said using marijuana was “not in and of itself a violent, forceful, or threatening act,” and noted that Oklahoma is one of a number of states where the drug, still illegal under federal law, can be legally bought for medical uses. “The mere use of marijuana carries none of the characteristics that the Nation’s history and tradition of firearms regulation supports,” Wyrick wrote.
Judge Wyrick concluded by saying, “And so here we are, with the federal government now arguing that Harrison’s mere status as a user of marijuana justifies stripping him of his fundamental right to possess a firearm. For all the reasons given above, this is not a constitutionally permissible means of disarming Harrison.”
This ruling underscores a growing judicial recognition that the categorical denial of gun ownership based on marijuana use, especially when state law permits such use, may not align with historical legal precedents concerning firearm regulations.
- Conclusion
The rollout of Kentucky’s medical marijuana program presents a complex intersection of state health initiatives and federal firearms laws, placing Kentucky citizens in a difficult position where they must decide whether they will participate in Kentucky’s medical marijuana program or retain their constitutional right to bear arms.
As federal law continues to classify marijuana as a Schedule I controlled substance, Kentuckians participating in the state-sanctioned medical program face restrictions on their Second Amendment rights.
For more insights on how these or other legal issues might affect you or your business, please contact me at the number or email listed below.
Jonas.Bastien@emwnlaw.com
859-543-0453