Stephanie Stephens

Cherokee County Sheriff's Deputy Stephanie Stephens surveys a seizure in 2014 that included marijuana and firearms. Though it is federal law that prohibits marijuana license holders from owning firearms, local and state agencies will likely uncover the vast majority of lawbreakers in the wake of Oklahoma's vote to legalize medicinal cannabis.

With medicinal marijuana about to become legal, a conundrum that has arisen in other states now looms for some Oklahomans, who may need to choose between their pot and their pistols.

Under federal laws, marijuana remains illegal, and a person cannot consume illegal drugs and own a firearm.

"That comes from marijuana still being a Schedule I drug under federal statute," said State Rep. Matt Meredith, D-Tahlequah. "That is something the administration and Congress may need to look at and consider taking it off Schedule I. But unless they decide to fix that, it is no guns or ammo for those with marijuana licenses."

Oklahoma is still threshing its options on voter-approved medical cannabis, but officials figure that those selling firearms might be required to check state records to ensure customers do not hold medical marijuana licenses. Owning ammunition is also illegal for users of illegal drugs.

Should a Cherokee Countian with a pot license run afoul of firearms ownership rules, it would fall to the U.S. Attorney's Office for the Eastern District of Oklahoma to file charges. Applicable federal law is not ambiguous.

Federal law does not allow gun purchases by an "unlawful user and/or an addict of any controlled substance." In 2011, the Bureau of Alcohol, Tobacco and Firearms made clear in a letter that the prohibition applies to marijuana users regardless of a state's legalization of medicinal cannabis.

The U.S. Circuit Court of Appeals for the Ninth Circuit ruled in 2016 that the federal law prohibiting medical marijuana licensees from buying firearms does not violate the Second Amendment, because marijuana is linked to "irrational or unpredictable behavior."

The case involved a Nevada woman who tried to buy a handgun in 2011, but was denied when the store owner recognized her as a medical marijuana cardholder, according to court documents. The plaintiff claimed she wasn't a user, but obtained the card to make a political statement.

The court also ruled the federal stance was constitutional, because "it is beyond dispute that illegal drug users, including marijuana users, are likely as a consequence of that use to experience altered or impaired mental states that affect their judgment and that can lead to irrational or unpredictable behavior."

It was also deemed reasonable by the court to assume a medical marijuana cardholder is also a user, allowing the firearms prohibition.

Conversely, Congress has barred the Department of Justice from spending any funds to prosecute those who grow, sell and use medical cannabis since 2014.

However, Trump's attorney general, Jeff Sessions, is an outspoken critic of marijuana. Sessions rescinded the Obama-era policy of not butting heads with the states over marijuana laws. Now, federal prosecutors in states that allow drug sales must decide how or whether they will enforce national marijuana regulations.

Initially, there were no known prosecutions of marijuana license holders for firearms ownership, and there was the occasional online forum suggestion that it might be easy to lie on ATF Form 4473 and dodge any scrutiny. That all changed in April when two men in Maine were charged in federal court for lying on the form; they allegedly claimed falsely they were not marijuana users, and one reportedly gave an old address.

Though owning firearms while holding a marijuana license is an infraction entirely under federal jurisdiction, it is unlikely that agents for the FBI or ATF will uncover many offenders. Local and state law enforcement are often confronted with guns and marijuana in combination.

"Those routinely occur during traffic stops or inside homes when serving warrants," Oklahoma District 27 Attorney Jack Thorp, who also reminded firearms purchasers that lying on an ATF form is a bad idea. "Whether or not the individual is arrested, we will have to follow those [federal] laws. We don't have enforcement power and we don't have the authority to prosecute. Any cases would have to be referred to the U.S. Attorney's Office."

Proponents of medicinal cannabis often cite numerous effects. The best uses supported by research include treatment of chronic pain and muscle spasms. But overall, research on marijuana is spotty because of its Schedule I classification. Doctors might remain averse to prescribing marijuana until more studies are conducted and reviewed.

The 2011 book "Drugs and Drug Policy: What Everyone Needs to Know," authored by drug policy researchers Angela Hawken, Mark Kleiman and Jonathan Caulkins, suggested violence is no more likely with marijuana than any other drug, including legal substances such as alcohol. The authors noted that even cigarette smokers are more likely to engage in criminal activity than those who do not use any drug recreationally.

Asked if his years of treating addiction yielded any indication that violence was more likely with marijuana use than other drugs, local physician Dr. Kenneth Gibson replied, "No."

However, in the 2014 case of U.S. v. Carter, the U.S. Circuit Court of Appeals for the Fourth Circuit decided that correlation vs. causation was irrelevant, saying the government need not prove a causal link between drug use and violence to prohibit firearm buys by drug users.

With the limited legalization of marijuana in Oklahoma, Thorp anticipates many bumps toward the convergence of valid use with state and federal regulation.

"We've received some tentative early regulations of the [Oklahoma State] Department of Health," Thorp said. "There is a D.A.'s meeting next week in Stillwater and we'll discuss this. We're in the study phase. We're trying to go from doing something one way for my entire lifetime to doing something completely different. There are issues like canine searches. Those dogs are trained to alert on the smell of marijuana and they can't differentiate between drugs. There will be growing pains, but the people spoke on the issue."

As worded, the question approved by voters would allow the issuance of state medical marijuana licenses with the signatures of board certified physicians. Current qualifying conditions for cannabis treatments would be lifted. Those with licenses could possess up to 3 ounces on their person or up to 8 ounces in their homes. Licenses would be needed for commercial growing or processing of cannabis, and to dispense the drug. A 7 percent tax would be assessed.

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