Can medical marijuana users purchase or possess guns in sc?

Can you purchase or possess a gun in SC if you are a medical marijuana cardholder or if you use marijuana?

Although it is uncommon for a person to be prosecuted solely because they possess or attempt to purchase a firearm while holding a medical marijuana card, it is currently illegal under both federal and SC state law.

Below, we will discuss the current state of the law regarding gun ownership and marijuana use in SC, including:

• A lawsuit that was filed in Florida (on 4/20) arguing that the prohibition violates the Second Amendment rights of medical marijuana users,
• Federal circuit court opinions that have upheld the prohibition,
• SC state law on firearm possession and marijuana use, and
• The current status of the SC Compassionate Care Act.

CAN A MEDICAL MARIJUANA USER PURCHASE A GUN UNDER FEDERAL LAW?

Under federal law, a marijuana user cannot purchase or own a firearm. 18 USC Section 922(g) makes it a federal crime to possess (or purchase) any firearm or ammunition if the person “is an unlawful user of or addicted to any controlled substance,” which includes marijuana (until Congress decides to legalize marijuana, which doesn’t look like it will happen this year).

Florida Lawsuit Filed on 4/20

Florida’s agricultural commissioner filed a lawsuit (on 4/20/22) in an attempt to block a federal rule that prevents medical marijuana cardholders from buying guns or getting their concealed weapon permits.

On the federal form that must be filled out when buying a gun, it asks whether the buyer uses any unlawful drugs – and then reminds the buyer that marijuana is an illegal drug under federal law.

If the person checks “yes,” they will not be sold the gun or issued their permit. On the other hand, if the person checks “no,” they can be prosecuted for making a false statement and subject to five years in federal prison…

Medical marijuana is legal in Florida. Guns are legal in Florida. Yet, medical marijuana cardholders are prohibited from owning a firearm.

The Ninth and Fourth Circuits Have Held that Marijuana Users are Prohibited from Possessing Firearms

The 4/20 lawsuit, although it makes sense, is likely doomed to fail unless Congress acts to legalize the plant.

Why?

There are at least two circuit court opinions on this subject already, and both found that marijuana users – even legal medical marijuana cardholders – can be prohibited from purchasing or possessing firearms.

In Wilson v. Lynch, a 2016 Ninth Circuit Court of Appeals case, the Court held that, although the government did not offer any evidence that Lynch used marijuana, and Lynch denied using marijuana, it did not violate her Second Amendment rights to prevent her from purchasing a firearm solely because she held a medical marijuana card…

The Fourth Circuit Court of Appeals (which includes SC) reached the same result in United States v. Carter in 2012, finding that marijuana users can be prohibited from purchasing or possessing firearms under 922(g), calling marijuana users “dangerous and non-law abiding citizens” who are “categorically excluded from the historical scope of the Anglo-American right to bear arms” and comparing pot smokers to domestic violence abusers.

Note that the federal courts have protected a citizen’s Second Amendment right to bear arms even if they are placed on the no-fly list because they are a suspected terrorist, but not if you hold a medical marijuana card.

Based on these two results, it doesn’t look like legalization or Second Amendment advocates are going to find a sympathetic ear in the federal courts.

CAN A MEDICAL MARIJUANA USER PURCHASE A GUN UNDER SC LAW?

It’s not just federal law that prevents SC marijuana users from owning or purchasing firearms – SC Code § 16-23-30 also specifically excludes “habitual drunks or drug addicts” from owning or purchasing firearms, and you can be sure that, unless this statute is amended, it will be interpreted as including medical marijuana cardholders.

SC’s Compassionate Care Act

The SC Compassionate Care Act is currently pending in both the House and Senate, which would legalize certain non-smokable THC products.

To be clear, even if this law is passed, it does not legalize marijuana.

Even medical marijuana cardholders would not be permitted to possess or smoke actual marijuana, but they would be permitted to use lotions, creams, oils, and tinctures that contain THC if they are diagnosed with one of the following medical conditions:

• Cancer,
• Multiple sclerosis,
• A neurological disease or epilepsy,
• Glaucoma,
• Post-traumatic stress disorder,
• Crohn’s disease,
• Sickle cell anemia,
• Ulcerative colitis,
• Cachexia or wasting syndrome,
• Autism,
• Severe or persistent nausea,
• Chronic medical conditions with severe and persistent muscle spasms,
• Chronic or debilitating diseases for which an opioid could have been prescribed for severe pain,
• Terminal illness with a life expectancy of one year or less, or
• Other serious medical conditions as determined by the Medical Cannabis Board.

Under current state and federal laws, however, anyone holding a medical marijuana card in SC, like anyone holding a medical marijuana card in Florida or any other state, will be prohibited from possessing or buying any firearms or ammunition.

For now, possession of any delta-9 THC products, whether it is smokable marijuana, oils, tinctures, gummies, or other edibles, is illegal under SC law, and SC police will take you to jail if you are charged with marijuana possession.

GOT AXELROD?

If you have been charged with marijuana possession in SC, our drug crimes defense lawyer will get the evidence in your case, review the videos and reports, and help you to retain a drug dog expert to challenge the search when appropriate.

In many cases, there is no reason for you to walk away from a marijuana arrest with a conviction – even in the worst cases, you may still have options to keep the arrest off your record.

If you have been arrested and charged with possession of marijuana in Myrtle Beach, schedule a free consultation with a Myrtle Beach criminal defense lawyer on the Axelrod team. Call us at 843-916-9300 or fill out our contact form today.