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Maryland Medical Marijuana Patients and their Right to Bear Arms

November 2019

By: Emelia N. Hall

Medical marijuana is legal in 33 states (including Maryland) and the District of Columbia, but remains illegal under federal law.  Can your right to treat your ailment with medical marijuana under state law infringe on your constitutional right to bear arms?  In Maryland—absolutely. 

Under federal law, firearm dealers are not permitted to sell firearms or ammunition to persons who unlawfully use or are addicted to any controlled substance, including marijuana.  In 2011, following the increase in state legalization of marijuana, the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives issued a bulletin advising firearm dealers that if an individual intending to purchase a firearm possesses a legal marijuana card under state law, the dealer has “reasonable cause to believe that the person is an unlawful user of a controlled substance.”  This directly prohibits the dealer from selling a firearm to that individual.  Violation of this prohibition is a felony.  Consequently, and in the same vein, medical marijuana patients are not permitted to possess firearms.  Most state courts have upheld the restriction as legally proper.  In Hawaii, for example, police issued notices to medical marijuana patients informing them that they had 30 days to surrender their firearms.

However, some states have acknowledged and embraced the idea that, without state assistance, the federal government would have great difficulty enforcing these restrictions.  The Maryland Cannabis Commission requires that medical marijuana patient information be kept in compliance with HIPAA regulations.  So, unlike many other states, this information is withheld from databases used in background checks.  This limits Maryland State Police from accessing a firearm applicant’s medical marijuana status.  However, the Maryland State Police (the entity responsible for firearm applications) do inquire into an applicant’s marijuana usage.  If the applicant is found to have provided false information, the applicant can be subject to criminal prosecution, with consequences including up to 10 years in prison and a potential fine of $250,000.  Although the Maryland Senate unanimously voted this year to prohibit the Maryland State Police from denying a firearm purchase by a person based on their use of medical marijuana under state law, the bill ultimately failed to pass the House of Delegates.  It is likely not the last time that the state legislature will consider medical marijuana patients’ Second Amendment rights.  For now, though, Maryland law does not protect its medical marijuana patients from the harsh restrictions of federal law.

For more information, please contact Emelia Hall or any member of the Tydings health care practice group

This alert has been prepared by Tydings for informational purposes only and does not constitute legal advice.

 

CANNABIS INDUSTRY WHITEPAPER

Tydings is the Maryland member of Meritas, a global alliance of more than 7,700 lawyers serving in nearly 200 independent, local law firms across more than 97 countries.  Meritas has released a whitepaper offering a primer to the complex and confusing global cannabis industry as it stands today.

If you have any questions about this whitepaper or the cannabis industry, please contact Greg Garrett, co-chair of the firm's health care group.

 

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