At the time the article was written (2016), they couldn’t provide very definitive answers since much of the Michigan Medical Marijuana Act and following privileges of its cardholders, when it comes to firearm possession, was still a gray area in both federal and state law. The correlation between the two subjects is very important, because when applying to buy a gun, of any variety, you have to fill out the License to Purchase form with the state, in accordance with federal law. On this form and the Concealed Permit License, you have to answer the question pertaining to possession and use of marijuana and any other controlled substances like it. We believe there is some help from federal statute 18 U.S.C. § 922(g)(3) pertaining to licenses and possession, but it still does not clarify the issue thoroughly. The law states [anyone] “who is an unlawful user of or addicted to any controlled substance” is not eligible for an LTP or CPL, which by reasoning this does not include lawful MMC holders, meaning they are not prohibited from possessing a firearm or ammunition. Since this phrasing allows for people that are abiding lawfully under state law, it can be argued there should be no barrier to owning a weapon and holding a medical marijuana card simultaneously. It can also be argued that just by possessing the card does not mean you are in possession of or using marijuana and it’s subsequent products.
To be clear 922(g)(3) is a governing law, but it has subsequent amendments that should not be overlooked. In particular 922(d)(3), which deals directly with the sale of firearms, not just the screening process, and it includes the clarifying phrase “having reasonable cause”. This clause is something that (g)(3) does not add, further clouding the subject. This difference may not stand out as a big hurdle, but it is critical in the argument whether or whether not MMMA card holders are eligible to hold a CCP.
In the article, by Ammoland and MCGRO, they state “The ATF takes the position that anyone with an MMMA card is probably using and therefore not allowed to possess a firearm.” As mentioned before this is not an absolute fact, but in 2011 the ATF (Bureau of Alcohol, Tobacco, Firearms, and Explosives) released an open letter explaining how statues 922(d) and 922(g) correlate, and are defined pertaining to states with legalized marijuana. Their stance is, as a federally licensed firearm dealer, the dealer may not sell to anyone that is known to or in fact does possess a medical marijuana card, as this is reasonable cause, and so the buyer is ineligible according to 922(d). This is not to say they instructed that cardholders not be able to lawfully possess a firearm, because 922(g) does not contain such a clause, but it does ensure that the purchase and sale of a gun would be frowned upon, if not considered an offense.
As the best scenario and case law we can present, at this time, we then looked into the ruling of the 9th Circuit Court of Appeals. This case took place back in August 2016, but their verdict is sound, a satisfactory explanation of the gaps the statues leave. The case was Wilson v. Lynch, during which the 9th Circuit ruled opposing the ATF’s open letter from 2011. The Court said “Title 18 U.S.C. § 922(d)(3), 27 C.F.R. § 478.11, and the Open Letter bar only the sale of firearms to Wilson–not her possession of firearms.” As this is a ruling from a circuit court, this is no longer opinion, through process or conjecture, but is now ruling case law.
In essence, it is the fundamental difference that comes into play when purchasing weapons and ammunition, not in the possession of firearms. The above ruling is narrow in its application, in a sense, it only applies to federal law (not state law) relating to the sale, not possession, and just to cardholders who are not users. This is why the federal form 4473, which covers the use and possession of marijuana and other controlled substances is still in use. So, if you are planning on getting a license, apply for ones that only have to comply with state law and not federal, because federal law requires compliance with all statues.
Michigan law specifically lays out the exact criteria you need to meet to be determined worthy of a License to Purchase a pistol or a CPL, the statues they follow are MCL 28.422 and MCL 28.425b, respectively. The reason we recommend to only apply on a state level versus a federal level is that neither 28.422 or 28.425b contain language comparable to the federal statutes, and neither have restrictive requirements for MMC holders. If you are not guilty of violating any controlled substance laws, which would then make you ineligible for holding a medical marijuana card as well, you are eligible for firearm ownership.
Another part of the (https://mcrgo.org/) article we want to cover, that is not accurate, is the fact that state licensing requires a NICS background check and hence that federal laws still need to be followed. This is inaccurate and false because state licensing for medical marijuana is not included in the NICS search of your background. Again your right to purchase is under scrutiny pertaining to the Wilson ruling, not your right to possess and own a firearm.
Finally, the Michigan Medical Marihuana Act (MCL 333.26424) protects cardholders under section 4 from ever being “denied any right or privilege,” and since gun ownership is a constitutional right, they can never overturn that right. To explain further, the Act is initiated law, which means it can not be repealed, preempted, or modified without a supermajority (75% of the house and senate). This means that the Michigan licensing authority is statutorily prohibited from denying a cardholder a License to Purchase a pistol or obtaining a concealed permit license.
In Summary The Key Points:
- The Federal laws that govern firearm sale and possession are 922(d) (sales) and (922(g)(possession).
- Both Federal statutes contain different criteria, and the 9th Circuit clarified the ‘gray’ area during the Wilson v. Lynch case in 2016.
- The current understanding of the Federal law is construed in such a way as to prohibit the sale of firearms to MMMA cardholders if the seller has knowledge of the card.
- Federal law does not have the authority to prohibit possession of firearms for people who merely have an MMMA card, but are not using.
- Since applying for LTP and CPL are state-based application they do not need to answer the marijuana and controlled substance question.
- State law prevents Michigan authorities from denying any rights or privileges, such as owning and purchasing a firearm, to cardholders.
- Bottom line: when someone calls our office to ask if as an MMMA cardholder if it is still legal for them to purchase and possess firearms the answer is Yes! Yes, you can, it is your right, and you have the ability to exercise that.