The Intersection of Gun Ownership and Medical Marijuana Usage in the Wake Of Illinois’ Compassionate Use of Medicinal Cannabis Pilot Program Act

When the clock struck midnight on January 1st this year, legislation providing for the legal medicinal use of marijuana took effect in Illinois. [1] Illinois became the twentieth state to allow the production and distribution of medical marijuana under the Compassionate Use of Medical Cannabis Pilot Program Act (the Act).
[2] The Act provides a list of over thirty medical conditions that would qualify a patient to receive medical marijuana. [3] The Act also sets forth requirements of a bona fide physician—patient relationship and limits to the amount that can be prescribed. [4] Additionally, while the law also sets out that twenty-two growers (referred to as “cultivation centers” in the Act) will be licensed and sixty dispensing centers will be created across Illinois [5], overseeing agencies have 120 days to establish rules and regulations governing the program. [6] However, draft regulations have been published by the Department of Public Health, which provide some insight into the logistics of the Act. [7]

 The medical marijuana law in Illinois is “one of the strictest of its kind.” [8] It remains to be seen, however, whether the Act law is too restrictive.  Notably, the proposed regulations prohibit the holding of both a medical marijuana card and a Firearm Owners Identification Card or a Concealed Carry Weapons Permit. [9] The inclusion of this provision complies with the federal Gun Control Act of 1968, which prohibits the sale of a firearm to an “unlawful user of or addicted to any controlled substance.” [10]

This provision in the Gun Control Act has been declared constitutional in the federal courts with respect to a dealer selling firearms or ammunition to a marijuana user; those courts reasoned that the Second Amendment does not extend the right to give or sell a firearm. [11] Additionally, those who unlawfully use or are addicted to controlled substances are prohibited from possessing firearms under federal law. [12] Several courts have upheld this provision as well, including the 7th Circuit Court of Appeals. [13] Although the “unlawfully” language might seem to make an exception for medicinal marijuana that is permitted by state legislation, the Bureau of Alcohol, Tobacco, Firearms and Explosives issued an open letter to all federal firearms licensees explaining that Marijuana is a federally 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.” [14]

While it seems that gun-wielding-medicinal-marijuana-using Illinoisans are out of luck under this framework, Oregon recently held that a medicinal marijuana registrant under the Oregon Medical Marijuana Act cannot be denied a concealed handgun license on the basis of the admission to regular use of medicinal marijuana. [15] Specifically, Oregon held that “the Federal Gun Control Act does not preempt the state’s concealed handgun licensing statute.” [16] Thus, if Illinois were to implement the proposed regulation prohibiting the possession of both a medical marijuana registration card and Firearm Owners Identification Card (or a Concealed Carry Weapons Permit), Illinois courts might strike down this provision based on the same reasoning employed by the Oregon Supreme Court.

The rights of both possessing a gun and using medical marijuana are heavily debated, and it is likely that the intersection of these rights will make its way up through the courts, especially now that more states are enacting medicinal and recreational marijuana legislation.  Illinois, in particular, will have to deal with this intersection given the projection that in 2014, 350,000 to 400,000 Illinoisans will apply for concealed carry permits under recent legislation. [17] It is at least conceivable and at most probable that there will be overlap of gun and medical marijuana registrants in Illinois.

 

References:

[1] 410 Ill. Comp Stat. 130/999 (2013).

[2] 410 Ill. Comp. Stat. 130/1 (2013); Jordan Friedman, Ill. Becomes 20th State to Legalize Medical Marijuana, USA Today (Aug. 1, 2013), http://www.usatoday.com/story/news/nation/2013/08/01/illinois-legalize-marijuana/2609371/

[3] 410 Ill. Comp Stat. 130/10(h) (2013).

[4] 410 Ill. Comp Stat. 130/10(y) (2013); 410 Ill. Comp Stat. 130/130(h) (2013) (“A dispensing organization may not dispense more than 2.5 ounces of cannabis to a registered qualifying patient, directly or via a designated caregiver, in any 14-day period unless the qualifying patient has a Department of Public Health-approved quantity waiver”).

[5] 410 Ill. Comp Stat. 130/85(a) (2013); 410 Ill. Comp Stat. 130/115(a) (2013).  The dispensing organizations and cultivation centers will be “geographically dispersed” across Illinois.  Id.

[6] 410 Ill. Comp Stat. 130/165(a) (2013).  These agencies include: The Department of Financial and Professional Regulations, the Department of Public Health, and the Department of Agriculture.  Id.

[7] See generally Compassionate Use of Medical Cannabis Patient Registry, Ill. Reg. (proposed Jan. 21, 2014), available athttp://www2.illinois.gov/gov/mcpp/Documents/DPH%20medical%20cannabis_DRAFT%20proposed%20rule%2001%2021%2014.pdf [hereinafter Draft Regulations].

[8] Edward C. Jepson, Jr. et al., Illinois’ Medical Marijuana Law, AHLA Newsstand (Am. Health Law. Ass’n, Washington, D.C.), January 7, 2014.

[9] Draft Regulations, section 946.230(23). 

[10] 18 U.S.C. § 922(d)(3) (2014).

[11] United States v. Conrad, 923 F. Supp 2d 843, 852 (W.D. Va. 2013); United States v. Chafin, 423 F. App’x 342, 344 (4th Cir. 2011) (unpublished).

[12] 18 U.S.C. § 922(g)(3).

[13] See generally United States v. Yancey, 621 F.3d 681 (7th Cir. 2010).

[14] Press Release, U.S. Dept. Just., Bureau of Alcohol, Tobacco, Firearms and Explosives, Open Letter to All Federal Firearms Licensees (Sept. 21, 2001), available athttp://www.atf.gov/files/press/releases/2011/09/092611-atf-open-letter-to-all-ffls-marijuana-for-medicinal-purposes.pdf.

[15] See generally Willis v. Winters, 350 Ore. 299 (2011), cert. denied 80 U.S.L.W. 3395 (U.S. Jan. 9, 2012) (No. 11-120).

[16] Id. at 302.  The court also stated that “Congress lacks authority to require the states to use their gun licensing mechanisms to advance a particular federal purpose.”  Id. at 313.

[17] Cook County Leads Concealed-Carry Permit Applications, CBS Chicago (Jan. 16, 2014 3:35 PM), available at http://chicago.cbslocal.com/2014/01/16/cook-county-leads-concealed-carry-permit-applications/.