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Why federal regulations are likely to keep lawful gun owners away from Minnesota’s medical cannabis program

The conflict stems from a federal government policy of denying gun purchases and transfers to anyone who signs up for a state’s medical cannabis program.

Patients who sign up for the medical cannabis registry don’t even have to purchase any form of cannabis to lose their legal right to purchase firearms.
Patients who sign up for the medical cannabis registry don’t even have to purchase any form of cannabis to lose their legal right to purchase firearms.
REUTERS/Joshua Roberts

When Minnesota adds smokeable dried cannabis flower to its medical cannabis program next March, managers of the program think it could triple or quadruple the number of patients on the registry. That’s because smokable marijuana is much cheaper to produce, which could making it more competitive with what’s available on the illicit market.

But some medical marijuana and gun rights activists say the number of registrants would be even higher if the federal government didn’t adhere to a decade-old policy of denying gun purchases and transfers to residents who sign up for the state program. And rather than join the state’s program, potentially eligible patients may stay with the illicit market rather than risk losing gun ownership rights.

Managers of Minnesota’s six-year-old medical cannabis program estimate that the current number of participants, about 26,000, could jump to 100,000 or more when smokable cannabis becomes a legal product for patients in the program. But patients who sign up for the registry don’t even have to purchase any form of cannabis to lose their legal right to purchase firearms. That’s because, according to the federal Bureau of Alcohol, Tobacco, Firearms and Explosives, if a dealer is aware that a customer has a card from a state that permits medical marijuana, “then you have ‘reasonable cause to believe’ that the person is an unlawful user of a controlled substance. As such, you may not transfer firearms or ammunition to the person …”

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There is also a box on the ATF firearms transaction form that screens for people prohibited from receiving a firearm from a gun dealer. The question asks if the applicant is an “unlawful user” of marijuana or other controlled substances and includes this 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.”

A detail from the firearms transaction record form
A detail from the firearms transaction record form
The conflict stems from the different approaches taken regarding marijuana by the federal government and the many states that have legalized cannabis for recreational or medicinal purposes. To the federal government, marijuana is illegal, even listed on Schedule 1, which is reserved for drugs such as heroin and LSD that the government says have “no currently accepted medical use and a high potential for abuse.”

Yet many states — 36 — have some form of medical cannabis. And many policy makers and medical professionals think using marijuana for some patients has medical benefits and should not be equated with unlawful drug use.

State Rep. Rod Hamilton
State Rep. Rod Hamilton
State Rep. Rod Hamilton found out about the conflict not as a lawmaker but as a person living with multiple sclerosis. The Windom Republican, under the advice from his doctor at the Mayo Clinic, decided to try medical marijuana when other drugs were not giving him the relief from muscle spasticity and spasms related to MS. 

After reporting that he had joined the state program, Hamilton was told it put his gun ownership rights at risk. Even his decision to not seek help from medical cannabis products didn’t help because of the 2011 ATF directive to dealers. 

“Shame on me for not knowing that beforehand,” Hamilton said. “But if I as a legislator didn’t know that beforehand, just think of the thousands of people out there who didn’t know it either.”

Hamilton let his medical cannabis registration lapse over the summer and intends to renew his firearms permits. 

Had Hamilton not shared his story on social media, he probably wouldn’t have had trouble with his gun rights. Or he could have done what many Minnesotans do: buy marijuana illicitly.

But he didn’t want to take either path. “As a  legislator, you need to hold yourself to a higher standard,” Hamilton said. “You don’t want to do anything illegal, obviously. We want to make sure we’re abiding with all of the laws, rules and requirements.”

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Instead, he said, he is working to change the law, primarily at the federal level. There is a bill before the U.S. House called the GRAM Act (Gun Rights and Marijuana) that would exempt residents of states where marijuana is legal, either for recreational or medical reasons, from the ATF ban. 

An excerpt from the U.S. Department of Justice letter to all federal firearms licensees
An excerpt from the U.S. Department of Justice letter to all federal firearms licensees
Not that states haven’t tried. Missouri passed a law this summer asserting that under the U.S. Constitution’s 10th Amendment, the state has the power to decide whether citizens who possess marijuana are law-abiding citizens. The Oklahoma Senate passed a bill in 2020 saying that the state would not deny gun rights to medical marijuana patients. And the recreational cannabis bill that passed the Minnesota House — though not the Senate this year — included a clause that said being on the state medical marijuana registry would not “disqualify the person from possessing firearms and ammunition.”

That amendment produced one of the 2021 session’s odder political alignments: House Majority Leader Ryan Winkler and a member of the conservative New Republican Caucus, Jeremy Munson.

House Majority Leader Ryan Winkler, left, watching state Rep. Jeremy Munson speak at last week's press conference.
MinnPost photo by Peter Callaghan
House Majority Leader Ryan Winkler, left, watching state Rep. Jeremy Munson speak at a June 17 press conference.
Munson had succeeded in amending House File 600, the DFL marijuana legalization and regulation bill, and was one of just a handful of Republicans to vote yes on the bill. But while he said he thinks the current number of patients on the registry — 27,000 — will grow much higher than state estimates, he said he thinks many will stay away from the program because of the gun rights issue.

Munson said his wife has a condition that would make her eligible to use medical cannabis but she chose not to because of the threat to gun rights. “I’m a big supporter of medical cannabis,” said Munson, a Crystal Lake Republican. “But she just did not want her name on (the registry) because she wouldn’t be able to buy a firearm or even be able to buy ammunition …” 

Winkler and Munson later spoke at a press conference calling on the Senate to include similar language when it approved smokable marijuana in changes to the medical cannabis program in the Health and Human Services omnibus bill. It didn’t.

Tom Gallagher, an attorney, local Republican board member and a board member of the Minnesota chapter of the marijuana reform group NORML, said he saw the issue as one that could find support in both the GOP and the DFL. “I was trying to form a coalition between people who uninformed people might think are enemies or opponents,” Gallagher said. “This is a good way to bridge the gap.”

Tom Gallagher, speaking at last week's press conference. Behind him is Sharvari Hoosman, digital marketing director for Minnesota NORML.
MinnPost photo by Peter Callaghan
Tom Gallagher, speaking at a June 17 press conference. Behind him is Sharvari Hoosman, digital marketing director for Minnesota NORML.
Medical marijuana has bipartisan support. And while there is more disagreement over gun rights, Gallagher said people in both parties see unfairness in some medical marijuana patients being treated differently.

Winkler, DFL-Golden Valley, said he appeared at the press conference not because he thought it would succeed in the closing days of the special session, “but to show that we were willing to work on it. It seems like a good issue for us to work on this session coming up.”

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Winkler joked that the alignment of he and Munson on the amendment is “a sign that something is a very good idea or a very bad idea.”

State Sen. Michelle Benson
State Sen. Michelle Benson
Senate Health and Human Services Committee Chair Michelle Benson said they are willing to work on it in 2022. “I was aware of it during session but didn’t have the capacity to own the issue and resolve it,” Benson noted, saying it would have taken a lot of work during the final weeks of the June special session. Benson said the Legislature would need to talk to law enforcement and other interested people and groups. The purpose would be to “find a path forward so that people who want to use cannabis as medicine to treat a specific condition don’t lose their 2nd Amendment rights.”

Chris Tholkes
Chris Tholkes
Chris Tholkes, the director of the state Office of Medical Cannabis, said the state does not share its patient directory with any entities and only releases information on individuals at their request and permission.

How the federal government treats medical marijuana patients who purchase or transfer guns is a federal issue, she said. “There’s no exception for medical marijuana,” she said. “So if people are honest about participating in our program, they’re right that it excludes them. And we have not found a way to get around that. I don’t know if there’s a fix to be had.”