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BUFFALO, N.Y. — With recreational use of marijuana being legalized in New York State a variety of questions have been coming into our Verify team email, but one, in particular, we’ve received more than others.
The claim goes like this:
“Is it true that if you buy marijuana at a dispensary in NYS you will not be able to buy a firearm?”
Our sources for this story are United States Attorney for Western District of New York James P. Kennedy Jr., and attorney Anthony Kuhn, managing partner at Tully Rinckey PLLC.
Before we get to the direct answer, let’s talk about the process of purchasing a firearm. Any person who seeks lawfully to purchase a gun has to complete an ATF form which asks, whether you’re an unlawful user of, or addicted to, marijuana or any other controlled substance. If you answer “yes” to that question, then the firearms dealer (the FFL) may not transfer firearms or ammunition to them.
But what does our expert, U.S. Attorney for the Western New York District James Kennedy Jr., say about this? His office responded saying:
“Section 922(g)(3) of Title 18 of the United States Code, prohibits the possession of firearms by anyone ‘who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. § 802)).’ The definition in 21 U.S.C. § 802(6) provides that the term “‘controlled substance’ means a drug or other substance, or immediate precursor, included in schedule I, II, III, IV, or V of part B of this subchapter.” Marijuana is currently classified as a Schedule I drug under federal law, and as such, it remains a federal crime for any person in any state to possess, manufacture, possess with intent to distribute or to distribute any quantity of marijuana under federal law.
“Section 922(g)(3) has survived constitutional challenges that the phrase ‘unlawful user of a controlled substance,’ which is not defined in the statute, is void for vagueness. While no court has required the contemporaneous use of a controlled substance with the possession of a firearm, all require a temporal nexus between regular drug use and possession of a firearm. Courts have rejected claims that the statute impermissibly criminalized the status of being an unlawful user of drugs, and have held instead, that the statute criminalized the act of acquiring a firearm by an unlawful user, not the status of being an unlawful user. Courts have further held that unlawful users of controlled substances pose a risk to society if permitted to bear arms and that prohibiting unlawful drug users from possessing firearms is not inconsistent with the right to bear arms guaranteed by the Second Amendment.
“At least one federal Court of Appeals has upheld the constitutionality of a 2011 open letter issued by the ATF to all Federal Firearms Licensees (FFLs), that provided, in pertinent part, 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 possessing firearms or ammunition.’ See, Wilson v. Lynch, 835 F.3d 1083 (9th Cir. 2016), cert. denied, Wilson v. Sessions, 137 S. Ct. 1396 (2017).”
Attorney Anthony Kuhn echoed the US Attorney’s assessment of the law.
“For the purposes of ownership of a firearm, the issue is using marijuana,” Kuhn said. “So if you will admit to being a marijuana user, you are considered a prohibited person by the federal government, and they will not allow you to obtain or possess a firearm. It would be federally illegal. For the federal government, so what they’ve done is they’ve deferred to the states to say, for now, we’re going to allow you to legalize marijuana.”
Kuhn went on to say that the federal government isn’t willing to let states regulate access to a firearm, however.