State laws wrong approach for marijuana gun rights?

Richard Vogel

Many states have legalized marijuana to some degree or another. For some, it’s available recreationally while others restrict it to simply being for medical use.


Notably, however, the federal government has done nothing to address the categorization of pot. They simply have elected not to go after dispensaries that are operating within the laws of their respective states.

This has introduced a problem for gun owners. Those who use marijuana in accordance with those state laws are still subject to federal gun prohibitions. In other words, you can be in total compliance with state law, the same laws the federal government has essentially accepted as being fine, yet commit a felony because you own a gun.

This problem has necessitated a solution.

For some, this means state governments restoring gun rights for legal marijuana users. However, one attorney argues that these efforts simply won’t work.

In the meantime, states are going to start doing what they’ve done since the late 90s – taking matters into their own hands. A good example of this is Missouri, which in 2021 passed House Bill 85, which was referred to as the Second Amendment Preservation Act (SAPA). SAPA, interestingly, does not mention marijuana at all. The law takes a more circuitous aim at federal intervention via gun control laws. Specifically, section 1.420 says:

The following federal acts, laws, executive orders, administrative orders, rules, and regulations shall be considered infringements on the people’s right to keep  and bear arms, as guaranteed by Amendment II of the Constitution of the United States and Article I, Section 23 of the Constitution of Missouri, within the borders of this state including, but not limited to:

(1) Any tax, levy, fee, or stamp imposed on firearms, firearm accessories, or ammunition not common to all other goods and services and that might reasonably be expected to create a chilling effect on the purchase or ownership of those items by law-abiding citizens;

. . .

(4) Any act forbidding the possession, ownership, use, or transfer of a firearm, firearm accessory, or ammunition by law-abiding citizens; and
(5) Any act ordering the confiscation of firearms, firearm accessories, or ammunition from law-abiding citizens.

Because qualifying individuals could use medical marijuana in accordance with Missouri law, SAPA declared federal gun control laws to be infringements of those persons’ rights. And section 1.430 of SAPA therefore held such infringing laws “invalid” and incapable of enforcement within the state.

Even if SAPA or a comparative law provided a shield against these federal laws, FFL holders would still risk their licenses if they violated the law. So in reality, the law seems more symbolic than anything else.

The bottom line is that if marijuana users are to ever have gun rights restored, they need to focus in on changing federal law. With a potential circuit split on marijuana gun rights emerging, that may happen in the near future. Stay tuned to the Canna Law Blog for more updates.


Now, I happen to agree with the author. Granted, he’s an attorney and I’m not, so he’s more knowledgeable on the law than I am, but still…

The truth of the matter is that the federal government has been giving mixed signals on marijuana and guns for a while now. On one hand, President Joe Biden is the third occupant of the Oval Office to decline to enforce federal drug laws with regard to marijuana use in numerous states.

Yet his administration has also argued that marijuana users are particularly dangerous to justify the prohibition on users owning firearms. So they’re dangerous, but they’re not that dangerous?

Honestly, this back-and-forth kind of thing makes no sense to me at all.

What matters is that state intervention in an effort to restore gun rights for those complying with state marijuana laws isn’t going to produce the results some might think. If we’re going to do anything, it has to start with the federal prohibition, either through legislation or the courts.

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