SIOUX FALLS, S.D. (KELO) — Under federal law, as of June 12, 2023 at least, marijuana remains an illegal substance, a schedule-1 drug alongside heroin, LSD and ecstasy — classed even higher than cocaine, meth and fentanyl.
Under Title 18, U.S. Code, Section 922(g) — a.k.a. federal law — certain people are prohibited from shipping, possessing, transporting or receiving a firearm or ammunition. Among these prohibited persons are “unlawful users or addicts of controlled substances,” which includes those using marijuana — medically or recreationally.
With individual states over the years passing laws to legalize marijuana to different degrees, the question was raised as to whether an exception to the federal code should be made for those using the substance recreationally.
In 2011, the Bureau of Alcohol, Tobacco and Firearms (ATF), sought to settle that question. “Marijuana is listed in the Controlled Substances Act as a Schedule 1 controlled substance, and there is no exception in Federal law for marijuana purportedly used for medicinal purposes, even if such use is sanctioned by State law,” reads an open letter from the agency in 2011.
Thus, possession of a medical marijuana card would prohibit your ownership of a firearm.
But does it actually stop you from having one in reality?
Under South Dakota law, the state is specifically not allowed to stop you from owning a gun due to your status as a medical card holder.
Under state law, a cardholder may not be denied any right or privilege for the medical use of cannabis. This, presumably, also applies to their second amendment right.
Of course, federal law supersedes state law at all times. So, having a medical card should block you from buying or owning firearms. According to the South Dakota Attorney General’s Office, federal law is a federal issue. But what does that mean?
Does federal law actually stop you from owning a gun? The short answer is no.
And what of all the people who owned guns before getting a card? Under federal law, they’re breaking the law. But are we to believe the more than 10,000 cardholders in South Dakota — a state with a rich hunting culture — all either got rid of their guns or never owned any, to begin with?
The truth is, there are likely many people in South Dakota who are currently in violation of federal law. But we aren’t seeing them all arrested.
Matthew Kinney, a South Dakota attorney with a background in criminal and cannabis law spends a lot of time in courthouses, and he says he hasn’t seen many — if any — cases of people charged with illegally owning firearms as a result of being a medical cardholder.
What this tells us is that by and large — at least in South Dakota — the federal law isn’t being enforced as it pertains to firearm ownership with a medical card. We must also remember of course that marijuana itself is illegal at the federal level, yet you can still purchase it in South Dakota with little fear of legal reprisal if you are within the state’s medical system.
This is because the federal government has chosen to not enforce its laws on the matter in states which have made their own. This also appears to be the case with firearms, though the 2011 letter would seem to indicate that the blind eye toward gun ownership is notably less blind than that which is directed at the marijuana industry as a whole.
The lack of enforcement may be in part due to the resources required. It would cost time and labor to go after every person in South Dakota who both owns a gun and uses marijuana to treat a chronic condition. However, they likely could go after you if they had a reason.
Flouting federal law is not without its risk. If you choose to hold both a gun and a medical card, there could come a time when you face a legal consequence.
This could happen, but it’s not a guarantee. For instance, do the feds even know if you have a card? The South Dakota medical program is administered by the State Department of Health (DOH).
Part of state law 34-20G is that state and local law officers cannot arrest someone, seize cannabis or otherwise investigate on the sole basis of a violation of the federal Controlled Substance Act, as long as the subject is in compliance with South Dakota law. The officer is also not allowed to provide info or logistical support to federal investigators in this matter.
Theoretically, the State of South Dakota could deny access to its medical cardholder database to the federal government. Whether or not the state actually would is a question to ponder.
This would be a factor, particularly for anyone seeking to purchase a gun since obtaining a medical card. Along with that purchase comes a federal background check, which includes a question: “Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance? Warning: The use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medicinal or recreational purposes in the state where you reside.“
This is a yes or no question answered with the check of a box. Under Federal law, a South Dakota medical cardholder would be an unlawful user of marijuana, but the federal government may not know you hold that card, and the State of South Dakota won’t withhold a firearm due to your status as a cardholder.
Still, checking ‘No’ on that box would constitute perjury.
If you choose to skirt federal regulation one way or another, maintaining your firearm and your medical card status, Kinney warns that legally speaking “you’re travelling into the grey zone.”
This zone will remain grey until one of two things happens; a federal change in the law regarding firearm ownership, or a federal change regarding the illegality of marijuana.