Can Utah’s medical marijuana users own guns?

Utah – Sunset resident Jeremy Hawkins knew he was legally permitted to own a gun in Utah. And as a registered medical cannabis patient, he was confident he was on the right side of the state’s drug laws.

He just wasn’t sure if — and how — he could do both at the same time.

That’s because even the most perfect, rule-following marijuana patient is technically still a scofflaw in the eyes of the federal government, which oversees many aspects of gun sales and possession across the nation. With that in mind, Hawkins decided to hire an attorney, reasoning that the $350 was money well spent.

“It makes me feel like I’m still breaking the law, even though I’m not,” said the 36-year-old, of complications and stigmas that still surround the plant’s medical use.

Like recreational and medical cannabis in states across the country, Utah’s roughly year-old program occupies a gray space because it operates under the nose of the federal government, which prohibits the substance.

Advocates are hopeful that the tide could be turning, with powerful Senate Democrats recently vowing to take on a federal legalization effort and a marijuana banking bill passing the House of Representatives this week. Meanwhile, Utah patients who want guns still have to navigate the clash between state and federal rules, and safety advocates continue to worry that these legal snarls incentivize cannabis users to exploit loopholes in the nation’s background check systems.

“This is one of the lunacies of having federal prohibition and state legalization. You almost in some ways are put to a choice between your ability to be a medical cannabis patient and your Second Amendment rights.” said J.D. Lauritzen, who also goes by “Leafy Lawyer.”

Generally, medical marijuana states including Utah have continued to let cannabis users buy and carry guns without a problem. (The Honolulu Police Department in 2017 ordered patients to forfeit their firearms, though they quickly rescinded the directive in the face of public pushback.)

In Utah, cannabis advocates say they’ve tried to make it crystal-clear in state law that patients don’t have to give up any of their firearm freedoms. But they didn’t realize how complicated that would get when legislators passed the Utah Medical Cannabis Act in late 2018.

“We thought we had kind of covered our bases,” said Desiree Hennessy, executive director of the Utah Patients Coalition. “But we’re missing the bigger picture, because it’s still federally illegal, and it’s hard to fit those puzzle pieces together.”

Can patients buy a gun?

Anyone who walks into a Cabela’s store, Walmart or other federally licensed firearms dealer has to fill out an application form from the U.S. Bureau of Alcohol, Tobacco, Firearms & Explosives. And since one of the questions on the document is whether the would-be buyer uses drugs that are illicit under federal law, cannabis patients have to answer yes — or lie and commit a crime.

And people who admit on the form to using marijuana, even through the state-sanctioned program, are disqualified from buying the firearm, according to Capt. Greg Willmore with the Utah Bureau of Criminal Identification.

“So the more you try to abide by the laws, the more screwed you are?” one woman wrote in a Utah medical cannabis Facebook group, as patients discussed purchasing guns. “Sounds about right.”

Cannabis patients can easily bypass this problem by buying privately, and avoiding the requirement for completing this federal form, says Connor Boyack, a libertarian advocate and central figure in shaping Utah’s cannabis law. The Utah Gun Exchange, a sort of Craigslist for firearms, is one venue where these private transactions can take place, said Boyack, who helped build the website nearly a decade ago and later sold his interest in it.

Boyack’s suggestion is concerning to Terri Gilfillan of the Gun Violence Prevention Center of Utah. She said she doesn’t think cannabis patients should face tighter restrictions than other gun buyers, but she does object to any solution that involves circumventing federal checks.

“The fact that we would be advising people to go through the backchannels to get their firearms is just beyond me,” she said. “These background checks save lives.”

Hennessy and other advocates thought the cannabis program enacted by Utah legislators would enable patients to obtain permits for carrying concealed firearms in public — but hadn’t accounted for the way federal and state law enforcement are intertwined.

The state’s concealed-firearm permit aligns with federal requirements for gun ownership, similar to the ones that would prevent a patient from buying a weapon through a licensed dealer, Willmore said. So if state law enforcement learns that a permit holder or applicant is also a cannabis patient, they take action to either suspend or deny the concealed-firearm approvals, he added.

At the same time, Willmore said, his agency doesn’t actively search through the state’s cannabis patient registry and generally wouldn’t know if one of these marijuana users also has a permit. On occasion, though, cannabis patients will volunteer the information to state law enforcement, or police might stumble upon someone’s medicinal marijuana in the course of an investigation, he and Hennessy said.

But restrictions on these approvals have recently become much less vexing to advocates now that state lawmakers have legalized so-called constitutional carry, meaning that most Utahns can put a firearm under their jacket and head out of the house whether or not they have a permit. During the last legislative session, cannabis advocates joined gun rights groups to push for that change, which takes effect May 5.

The permit still has its advantages, Boyack said, since it’s recognized by many states that do still mandate such documents. The approvals also allow people to buy guns without going through the background check step, Willmore added.

But generally, with the law change, “cannabis cardholders can conceal-carry whether they have a permit or not,” Boyack said.

Should they?

Hawkins has been using cannabis to treat a condition that leaves him nauseous, sometimes for 18 hours each day or more, so intensely that he’s not able to climb out of bed.

But ever since his legal consultation, he’s been stressing about the lawyer’s advice never to carry a firearm when active THC, the main psychoactive ingredient in cannabis, is still circulating in his system.

THC can be detected in someone’s system days after the person uses marijuana, long after the high has worn off — and he worries that means he’s effectively barred from ever carrying a firearm if he continues to use cannabis. He’s also on alert about the way other people perceive him as he walks through a grocery store or other public spaces, especially because of the persistent stigma around marijuana.

So just to be on the safe side, Hawkins says he’s chosen not to leave home with his firearm. Nik Maestas, 34, another cannabis patient, said he’s in the same boat and never carries marijuana and guns at the same time.

“As a gun owner and a concealed-firearm permit holder, I’m unsure about a lot of things, and I just don’t want to take that risk,” said Maestas, who lives in Cottonwood Heights with his wife and two children. “I don’t want to take a risk and find out I did something against the law.”

While Boyack says he thinks Hawkins is incorrect, adding that he doesn’t know of any gun rule related to THC, if it’s from legal use. He does understand why a cannabis patient might feel nervous when it comes to firearms.

A tiny mistake in obeying the state’s cannabis laws could put someone into the “restricted person” category, potentially exposing them to felony charges just for having a firearm, he said. In other words, a cardholding patient could face major consequences for infractions like possessing cannabis in the wrong form or smoking it.

Boyack said he and other advocates are lobbying state lawmakers for a fix so that minor missteps don’t land patients in big trouble.

Lauritzen notes that federal law enforcement has largely adopted a hands-off approach to state cannabis programs and is unlikely to devote its resources to cracking down on patients who are following Utah rules. Still, until the federal government decriminalizes the substance, this cease-fire is vulnerable to administration or political changes — as evidenced when former Attorney General Jeff Sessions in 2018 tried to encourage federal marijuana enforcement.

And Lauritzen also urges people to study up on their constitutional rights and refrain from volunteering information to local police if they’re ever stopped.

“It’s really important to know your rights, especially because they are still jamming people up for these types of things,” the attorney said.

Meanwhile, Hennessy says, she advises cannabis cardholders to err on the side of caution when it comes to firearms, given the fuzziness around the rules and uncertainty about how law enforcement will apply them.

“I just say, don’t carry guns and drugs,” she said.

Even though Utah technically allows it.