Cannabis, Guns and States’ Rights

Senate Bill 33 advanced through the Illinois Senate over the weekend, making clear that our state’s medical cannabis patients’ gun rights will not be affected. SB33 was originally introduced to add PTSD to the list of debilitating conditions and was then amended to include a provision preventing the Illinois State Police from using a person’s status as a medical cannabis patient to deny or revoke a Firearm Owner’s Identification (“FOID”) card.  The provision, however, fizzled out in the final hours of the spring legislative session but still has a chance at becoming law this year.

Cannabis Business LawyerMuch ado was made last year after a preliminary draft of Illinois’s medical cannabis regulations contained a provision making medical cannabis patients ineligible to obtain FOID cards. This language was removed from the rules ultimately approved by the Joint Committee on Administrative Rulemaking, leaving it unclear whether the protections contained in Illinois’s medical cannabis law extended to patients who are also firearm owners.

The issue all stems from 18 U.S.C. 922(g)(3), which prohibits “unlawful users” of controlled substances from possessing firearms under federal law. Because cannabis remains a Schedule I controlled substance under federal law, cannabis use is unlawful in the eyes of the federal government—regardless of whether that use is sanctioned under state law.

Much like cannabis, states regulate gun possession in a variety of ways. California, for instance, requires its citizens obtain a permit to purchase firearms, whereas Colorado does not. Colorado, however, does not allow registered medical cannabis patients to obtain concealed carry licenses, but Oregon does.

Many states deny their citizens a firearm permit if that person is prohibited under federal law from possessing a firearm. Such people include convicted felons, the mentally ill, anyone under a restraining order, those with domestic violence convictions, and anyone who is an unlawful user of or addicted to any controlled substance. States, however, are not required to incorporate 18 U.S.C 922(g)’s so-called “federal prohibitors” into their gun laws. This means that, generally speaking, states may to adopt gun regulations less restrictive than federal law.

Although the FOID measure did not pass over weekend, it signals a necessary step in dismantling yet another brick in the wall of cannabis prohibition. By its own terms, the Illinois Compassionate Use of Medical Cannabis Pilot Program Act recognizes that “States are not required to enforce federal law or prosecute people for engaging in activities prohibited by federal law.” The Illinois General Assembly is embracing these ideals by attempting to exercise its prerogative not to enforce federal law where it need not do so. No matter how you feel about gun control, there is no basis for discriminating against medical cannabis patients’ right to bear arms. We applaud their efforts and will be closely monitoring the situation. Stay tuned.