In Hawaii, Permission To Use Medical Marijuana Precludes Permission To Own a Gun

The state's gun permit policy underlines the absurdity of assuming that cannabis consumers are too dangerous to be trusted with firearms.

by Jacob Sullum, Reason Magazine, 5.27.2024 (reprinted with permission Reason.com)

Back in 2017, Honolulu's police chief abandoned a contentious plan to confiscate firearms from residents who use marijuana for medical purposes, which the state has allowed since 2000. But law enforcement agencies still reject applications for the permits required to legally possess guns in Hawaii when the would-be owners have state-issued medical marijuana cards. Last year, according to a recent report from the state attorney general's office, that was by far the most common reason for denying gun permits, accounting for two-fifths of rejections.

Under 18 USC 922(g)(3), it is a felony for any "unlawful user" of a "controlled substance" to receive or possess a firearm. Since the federal government does not recognize any legitimate use of marijuana, that disqualification applies to all cannabis consumers, even in states that allow medical or recreational use. And under Hawaii law, it is a felony to own a gun if you are "prohibited from possessing a firearm" under federal law.

In addition to documenting the prominent role of medical marijuana approvals in gun permit denials, the attorney general's report revealed an inconsistency between Hawaii County (the Big Island) and the state's three other major counties. While the denial rate averaged less than 1 percent in Honolulu, Maui, and Kauai counties, it was nearly 7 percent in Hawaii County.

The Big Island's outlier status was news to Hawaii County Police Chief Benjamin Moszkowicz, who took office in January 2023. While his department automatically rejected gun permit applications from residents with inactive medical marijuana cards, he discovered, the other counties granted permits to people whose cards had expired a year or more before.

Moszkowicz told Hawaii Pubic Radio that "75% of those who initially received medical marijuana denials were later approved after returning with documentation from a doctor or counselor saying they were no longer adversely affected." In light of that pattern, he said, Hawaii County has aligned its policy with those of the other counties and from now on will issue gun permits to residents who were once registered as medical marijuana patients but have not held active cards in the previous year.

That is what passes for enlightened policy in Hawaii, where the combination of gun registration and patient registration highlights the absurdity of assuming that cannabis consumers are ipso facto so dangerous that they cannot be trusted with firearms. Survey data suggest that something like 20 million American gun owners are also marijuana users, making them guilty of a federal felony punishable by up to 15 years in prison. But those cases are rarely prosecuted, mainly because the government generally does not know who owns guns or who uses marijuana. Because Hawaii tracks both kinds of information, its practices underline the injustice of denying people the constitutional right to armed self-defense for arbitrary reasons that have nothing to do with public safety.

The Biden administration has steadfastly defended this policy, despite the president's avowed concern about the "needless barriers" erected by the federal government's "failed approach to marijuana." The government's lawyers liken cannabis consumers, including medical marijuana patients, to "lunatics" and violent criminals. They even argue that marijuana use, which Biden says should not be treated as a crime, excludes someone from "the people" whose "right to keep and bear arms" is protected by the Second Amendment.

In 2016, the U.S. Court of Appeals for the 9th Circuit, which includes Hawaii, upheld the policy of banning gun sales to people who are known to have medical marijuana cards, even if they do not currently consume cannabis. The appeals court reasoned that possessing a medical marijuana card is a good, if imperfect, indicator of illegal drug use, which is in turn associated with violence, "impaired mental states," and "negative interactions with law enforcement officers." The 9th Circuit concluded that there was a "reasonable fit" between the challenged policy and a substantial government objective, which meant it passed "intermediate scrutiny" and was consistent with the Second Amendment.

Six years later in New York State Rifle & Pistol Association v. Bruen, the U.S. Supreme Court explicitly rejected the sort of "interest-balancing" test that the 9th Circuit applied in that case. "When the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct," Justice Thomas wrote for the majority. "The government must then justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation. Only then may a court conclude that the individual's conduct falls outside the Second Amendment's 'unqualified command.'"

The Hawaii Supreme Court takes a dim view of Bruen and the Second Amendment decisions that preceded it. In a unanimous decision last February, the justices said there is no such thing as an individual right to arms, which they deemed inconsistent with "the Aloha Spirit." That spirit may help explain why Hawaii is so keen to ensure that no one who uses marijuana for symptom relief is allowed to own a gun. But it does not override the precedents upholding the right that Hawaii's top jurists say does not exist.

Since Bruen, at least four federal courts have concluded that prosecuting marijuana users for possessing firearms does not meet the test established by that decision. Last year, for example, the U.S. Court of Appeals for the 5th Circuit overturned a cannabis consumer's conviction under Section 922(g)(3), rejecting the Justice Department's argument that it was consistent with Bruen. That defendant had received a prison sentence of nearly four years after he was caught with two guns and the remains of a few joints during a traffic stop.

Other courts have ruled that at least some applications of Section 922(g)(3) are constitutional. Last month, for example, the U.S. Court of Appeals for the 8th Circuit rejected a facial challenge to that provision. This month, a federal judge in Delaware relied heavily on that ruling when she declined to dismiss the federal gun charges against Hunter Biden, the president's son, who cited the 5th Circuit's decision in arguing that the policy his father defends violates the Second Amendment.

Even as the 8th Circuit rejected the argument that Section 922(g)(3) is unconstitutional on its face, the appeals court was skeptical of the main historical precedent that the Justice Department has cited to justify it. The government's lawyers argued that a categorical ban on gun ownership by illegal drug users is "relevantly similar" to early laws aimed at people who publicly carry or fire guns while intoxicated. Although the 8th Circuit was unpersuaded by that inapt analogy, it allowed that some drug users might be similar to people who are "mentally ill and dangerous" or to people who "tak[e] up arms to terrify the people."

The 8th Circuit nevertheless conceded that "not every drug user or addict will terrify others, even with a firearm." The court said it is "exceedingly unlikely," for example, that "the 80-year-old grandmother who uses marijuana for a chronic medical condition and keeps a pistol tucked away for her own safety" will "pose a danger or induce terror in others."

In Hawaii, however, that grandmother would be unable to obtain the permit she needs to legally keep a gun "for her own safety." Likewise for the other 32,000 or so patients whose medical use of marijuana the state has recognized as legitimate. Under state and federal law, one kind of permission precludes the other.

In the 24 states that have legalized marijuana for recreational as well as medical use, that grandmother could more readily exercise her Second Amendment rights, because she could legally buy marijuana without creating a record that would prevent her from buying a gun. But if she evaded the ban that Hawaii is so eager to enforce, she would be committing up to four federal felonies.

In addition to Section 922(g)(3), she would be violating two other provisions, 18 USC 922(a)(6) and 18 USC 924(a)(1)(A), if she bought a gun from a federally licensed dealer and checked "no" on the federal form that asks whether a buyer is an "unlawful user" of "marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance." Those felonies are punishable, respectively, by up to 10 years and up to five years in prison. The Bipartisan Safer Communities Act, which President Biden signed into law in 2022, added yet another potential charge, punishable by up to 15 years in prison.

All told, the 8th Circuit's hypothetical grandmother could face combined maximum sentences totaling 45 years for trying to exercise her Second Amendment rights. Does that situation make any kind of sense? Hunter Biden thinks not, but his father disagrees.

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