The War on Drugs is a War on the 2nd Amendment: Part 1
When medical marijuana reform passed in Missouri in 2018, one significant concern articulated by many Missourians was that getting a medical marijuana card and using marijuana legally under Missouri law would risk federal prosecution. Indeed, in 2011, the Bureau of Alcohol, Tobacco, Firearms & Explosives (BATFE) sent a letter to federal firearms licensees, stating:
...any 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. Such person should answer "yes" to question 11.e on ATF Form 4473 (August 2008), Firearms Transaction Record, and you may not transfer firearms or ammunition to them. Further, if you are aware that the potential transferee is in possession of a card authorizing the possession and use of marijuana under State law, then you have "reasonable cause to believe the person is an unlawful user of a controlled substance. As such, you may not transfer firearms or ammunition the person, even if the person answered "no" to question 11.e on ATF Form 4473.
In 2019 and 2020, Missouri State Representative Nick Schroer (R-St. Charles) filed legislation to prevent the sharing of any list of Missouri medical marijuana cardholders with the federal government in an effort to protect Missourians who own firearms and hold a medical marijuana card. This legislation attracted some support from cosponsors Rep. Dottie Bailey (R-St. Charles) and Rep. Brandon Ellington (D-Kansas City) in 2019, and Rep. Ron Hicks (R-St. Charles) in 2020. Presumably, this legislation would have advanced significantly had not COVID-19 lockdowns shortened the 2020 legislative session.
One bright spot is that Congress continues to prohibit prosecution of individuals acting in compliance with state law, although their conduct is still presumptively illegal:
The Rohrabacher-Farr Amendment is a rider in an omnibus appropriations bill funding the federal government. Since it was first passed, it has been renewed periodically with bipartisan support. The Rohrabacher-Farr Amendment, which prohibits interference with state-legal medical cannabis programs only, is still included as Section 531 of H.R. 3055...
The Ninth Circuit has interpreted the Rohrabacher-Farr Amendment as prohibiting the Department of Justice from spending funds from relevant appropriations acts for the prosecution of individuals engaged in conduct permitted by state medical marijuana laws and who fully complied with such laws. See U.S. v McIntosh (9th Cir 2016) 833 F3d 1163, 1178 (McIntosh). In McIntosh, the Ninth Circuit warned that the federal government can appropriate funds for prosecutions under the Controlled Substances Act tomorrow, or the temporary lack of funds could become a more permanent lack of funds if Congress continues to include the same rider in future appropriations bills.
Since the McIntosh decision, the Rohrabacher-Farr Amendment has been useful in halting federal prosecutions and asset forfeiture actions. (See e.g. U.S. v Pisarski (N.D. Cal, No. 14–cr–00278–RS–1), and this story describing the return of $257,733 seized by law enforcement officers from a licensed California cannabis distributor.) Pursuant to the Ninth Circuit’s interpretation of the Rohrabacher-Farr Amendment, where a person’s conduct strictly complies with all relevant conditions imposed by state law on the use, distribution, possession, and cultivation of medical marijuana, federal prosecution is barred unless and until a future appropriations bill permits the government to proceed.
Although this was written in 2019, the Rohrabacher-Farr Amendment continues to be accepted in Continuing Resolutions, now primarily sponsored by Congressman Earl Blumenauer (D-Portland).
We are hopeful that future federal action will create protections for firearms owners and commend Representative Schroer for his work to protect Missourians from federal prosecution.