Can an Illinois Medical Cannabis Patient Legally Purchase or Own a Gun?

Rachael Dickson
Attorney at Law, PharmaCann LLC (IL & NY)

 

 

Not too long ago, a Facebook user posted a picture of a sign hung up in an Illinois gun store which stated: “Attention: Medical Marijuana Card Holders. Illinois state law prohibits the purchase of firearms for medical cannabis card holders.” This picture, inspired some rather heated conversation and controversy.

 

Just FYI, Illinois state law does not in any way ban medical cannabis cardholders from owning a firearm. In fact, the recently adopted SB10 (now known as Public Act 099-0519) specifically clarified that products purchased at licensed dispensaries are “lawful products” to make it expressly clear to the Illinois State Police that issuing a FOID card doesn’t conflict with the state’s medical cannabis law. Although the laws and regulations of Illinois allow a medical cannabis patient to obtain a FOID card, in reality, the Illinois State Police will not approve a gun purchase by any medical cannabis patient due to a federal law forbidding users of a controlled substance from owning a gun.

 

Here’s the longer explanation.

 

The Basics

 

To start, generally, all U.S. citizens have the right to purchase and own a gun, under the Second Amendment to the Constitution, which states, “A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”

 

The 2008 Supreme Court case of D.C. v. Heller officially held that the Second Amendment protects an individual right to possess and use a firearm for lawful purposes. However, like most rights enumerated in the Constitution and elsewhere, the Second Amendment is not unlimited. Federal and state laws may restrict that right in some ways, such as by banning guns from government buildings or schools or banning users of controlled substances from owning a gun.

 

What Federal Laws and Agencies Say

 

Federal Law (18 USC 922(g)(3)) prohibits any person who is an “unlawful user of or addicted to any controlled substance” from possession, transporting, shipping, or receiving any firearm or ammunition “which has been shipped or transported in interstate or foreign commerce.”

 

The U.S. Department of Justice’s (“DOJ”) Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) said in a September 2011 memo that

 

“[A]ny 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 possession firearms or ammunition.”

 

The memo also advised that firearms and ammunition may not be transferred to medical cannabis users or anyone who the seller reasonably believes uses cannabis.

 

However, a later memo published in August 2013 addressing state medical cannabis programs (known as the “Cole Memo”) clarified the DOJ’s focus on specific enforcement priorities, such as preventing the distribution of cannabis to minors, preventing revenue from the sale of marijuana from going to criminal enterprises, and preventing the diversion of cannabis from states where it is legal to other states. This memo does not specifically address patients’ ownership of guns, but overall implies that citizens that use cannabis in compliance with state laws and regulations are unlikely to face federal prosecution.

 

The memo specifically states that it is a guide only and does not alter the Department’s authority to enforce federal law, regardless of state law. In fact, in the years since the Cole Memo was published, ATF spokespeople have given statements to reporters clarifying that federal law does still prohibit those who use or possess cannabis from possessing guns. 

 

What State Laws and Regulations Say

 

The Compassionate Use of Medical Cannabis Pilot Program Act was signed by Governor Pat Quinn in August 2013. It says at 410 ILCS 130/25(a):

 

"A registered qualifying patient is not subject to arrest, prosecution, or denial of any right or privilege . . . for the medical use of cannabis in accordance with this Act, if the registered qualifying patient possesses an amount of cannabis that does not exceed an adequate supply as defined in subsection."

 

This provision has been interpreted to protect a patient’s right to a Firearm Owners Identification (FOID) card (required in the state of Illinois to legally possess firearms or ammunition), among many others. 

After a law is passed by the legislature, state agencies have to create rules to interpret the law and put it into practice. The very first draft notice of proposed rules for the Illinois Medical Cannabis Pilot Program, released in January 1, 2014, stated that patients couldn’t have guns or FOID cards. The language of Section 946.230(c)(23) (at the top of page 34 in the document linked above), stated:

“[R]egistered qualifying patients and designated caregivers are not eligible for a Firearm Owners Identification Card or a Firearm Concealed Carry License and may be subject to administrative proceedings by the Illinois State Police if they do not voluntarily surrender such card or license.”

The draft rule immediately caused controversy. At the time, a state police spokesperson stated that the federal Gun Control Act and the Illinois Firearm Owners Identification Card Act were the legal basis for the wording in the draft rules. So many people were upset about the provision that state regulators eliminated the firearm ban provision in the next draft rules released April 2014.

This issue came to light again in December 2015 when several medical cannabis patients received letters from the state police informing that their firearms cards were being revoked. At the time, a checklist for firearms owners on the Illinois State Police website included this requirement: “I am not a medical marijuana patient registry card holder.” However, an ISP spokesperson at the time said that the letters and the checklist were both in error. The eligibility checklist on the ISP website no longer refers to the registry.

 

The Illinois State Police Firearms Services Bureau now specifically states on its website in its FAQs section:

 

“Medical marijuana cardholders will not have their FOID or CCL cards revoked, or be denied issuance of a FOID or CCL card, due to their status as a medical marijuana cardholder. Such cards are State-issued, governed by State law, and State law requires that a person's status as a medical marijuana cardholder not result in the denial of any right or privilege.”

Under the medical cannabis regulations, a medical cannabis patient can retain their previously-held FOID card, continue to own their previously-held guns, and even obtain a new FOID card. 

 

However, it appears that having a FOID card isn’t enough for a patient to buy a gun. When I called up the Illinois State Police to ask about the actual feasibility of buying a gun as a medical cannabis patient, I was told that a medical cannabis patient cannot buy any firearms in Illinois.  

 

“That’s federal law – it falls under the federal statute for drug addiction,” the ISP Firearms Bureau phone operator said. “Once you get that marijuana patient card, you’ll be ineligible for one year after the expiration of the marijuana card.” 

 

That federal law (18 U.S.C. 922(d)(3)) states: 

 

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 (as defined in section 102 of the Controlled Substances Act).  

 

As Point of Contact (POC) state for all firearms transactions, the Illinois State Police conducts the National Instant Criminal Background Check System (NICS) checks, the checks of related state files, and any required follow-up research for any gun purchase. This is in contrast to other states that let the federal government run the background checks (non-POC states) or conduct only part of the check (partial-POC states). As a result, it’s actually the Illinois State Police that delays or denies the purchase of a firearm once they see a medical cannabis card on an attempted purchaser’s background check.  

 

Gun Dealers Don’t Have to Sell You a Gun 

 

In addition, before you even get to the background check step, gun dealers can refuse to sell you a gun for pretty much any reason, as long as the refusal is not unlawful discrimination (which would pretty much only apply if they refused to sell you a gun based on a protected class, such as sex, race, or religion, among others).  

 

Prospective gun purchasers must also fill out an ATF form that asks: “Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any controlled substance?” A gun dealer is not supposed to go through with the transaction if you answer “yes.” And since the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) issued a memo back in September 2011 stating that there are no exceptions to the law against selling guns to users of controlled substances, gun dealers may be hyper vigilant about refusing sale.  

 

An Illinois Resident Can’t Just Go Buy a Handgun in another State  

 

Medical Cannabis patients frustrated by their inability to purchase a firearm in Illinois may think it’s a good idea to go buy a handgun in another state and then bring it across the border. Don’t do that. It’s illegal.  

 

Federal law bans both the sale of firearms by a federally licensed firearms dealer to a non-resident of the state (18 USC 922(b)(3) and the receipt of any firearms by a non-resident of the state in which the transfer takes place who is not a federally licensed firearms dealer  (27 CFR 478.29(a)). Although amendments have been introduced in Congress to defund Department of Justice and ATF attempts to enforce gun laws against medical cannabis patients, those amendments have not moved forward.  

 

Have you experienced issues with buying a gun as an Illinois Medical Cannabis Patient? Tell us about your experiences! We want to know.

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