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By: Micah Bucy
In August 2016, the Ninth Circuit in Wilson v. Lynch, No. 14-15700, 2016 WL 4537376 (9th Cir., Aug. 31, 2016) affirmed the federal prohibition of gun sales to medical marijuana card holders in states with legalized medical marijuana. An in-depth discussion of the Wilson case can be found here.
There have been developments since the Wilson decision was issued in the summer of 2016 – chief among them is the status of medical marijuana in Pennsylvania. Although Act 16 was signed into law ahead of the Wilson decision, the implementation of the Act and the availability of medical marijuana treatments to qualifying patients was far in the distance. Such is no longer the case. As of today, 9 out of the 12 grower/processors issued a permit by the Department of Health (DOH) have been approved to start growing, cultivating, and processing medical marijuana with the remaining 3 expected to be operational soon; 1 dispensary has been approved by DOH to open its doors with others expected to follow soon; over 550 physicians have registered and over 250 have been approved to recommend medical marijuana treatments; and over 10,000 patients have registered to receive medical marijuana treatments.[1]
The impendency of a fully operational medical marijuana industry has highlighted the Ninth Circuit’s decision in Wilson for would-be Pennsylvania medical marijuana users.
Recall that marijuana remains a Schedule I drug by the Drug Enforcement Agency—making it illegal under Federal Law to grow, possess, or use marijuana for any purpose—and that the U.S. Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives, the agency that oversees gun permitting and sales, issued a 2011 “Open Letter to All Federal Firearms Licensees” (“2011 Open Letter”) advising that even in states where medical marijuana has been legalized those medical marijuana users are still prohibited from possessing firearms or ammunition under 18 U.S.C. § 922(g)(3).
The Pennsylvania State Police (“PSP”), the agency tasked with conducting background checks and issuing gun permits to Pennsylvania residents, presumably in response to both the 2011 Open Letter and the Wilson decision, posted on its website on January 1, 2018, an advisory that for Pennsylvania medical marijuana card holders:
- It is unlawful for you to attempt to purchase a firearm under Federal law and you will be denied during your Pennsylvania State Police background check due to prohibitions under 18 U.S.C. § 922(g)(3).
- It is unlawful under federal law for you to keep possession of any firearms which you owned or had in your possession prior to obtaining a medical marijuana card … this is due to prohibitions under 18 U.S.C. § 922(g)(3).
The reaction to the PSP’s advisory has been swift and critical. In an article issued after the advisory was posted on the PSP website, Gov. Wolf was quoted as disagreeing with the law that requires people to choose between buying a gun and having access to medical marijuana. Governor Wolf was quoted as saying that Pennsylvania authorities are “not going to take [medical marijuana card holder’s] guns away.”[2]
According to Governor Wolf, those seeking to obtain firearms after obtaining medical marijuana may fairly be denied gun ownership, but for Pennsylvanians who already possess firearms and who now seek to obtain medical marijuana, their guns will not be seized.
[1] Wolf Adminstration Approves First Medical Marijuana Dispensary to Begin Serving Patients, Jan 4, 2018 available at https://www.governor.pa.gov/wolf-administration-approves-first-medical-marijuana-dispensary-to-begin-serving-patients/; Governor Wolf: More than 10,000 Patients Registered for Medical Marijuana Program, Dec. 27 available at https://www.governor.pa.gov/governor-wolf-more-than-10000-patients-registered-for-medical-marijuana-program/.
[2] Kevin Gavin, Wolf: ‘We Won’t Take Guns Away’ From Medical Marijuana Users, www. wesa.fm.com, Jan. 3, 2018 available at http://wesa.fm/post/wolf-we-wont-take-guns-away-medical-marijuana-users#stream/0.
