Posted by Edmund R. Folsom, Esq.

February 8, 2017

DISCLAIMER:  The following is not legal advice.  It is not intended as legal advice and should not be taken as legal advice.  I offer it to potentially aid understanding only.

Recreational marijuana use became legal in Maine on January 30, 2017.  Marijuana use for medical purposes has been legal in Maine for some time now.  But anyone who uses the substance should understand that it violates federal law for that person to possess a firearm or ammunition.  Federal law provides “It shall be unlawful for any person…who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802))… to…possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.”  18 U.S.C. §922(g)(3).  Suffice it to say that every act of possessing a firearm or ammunition meets either the “in or affecting commerce,” or the “shipped or transported in interstate…commerce” test, and that marijuana is a controlled substance under the Controlled Substances Act.

Because every act of possessing a firearm or ammunition will meet one or both of the “commerce” tests, and because marijuana is a controlled substance under the Controlled Substances Act, possession of a firearm by a marijuana user violates 18 U.S.C. §922(g)(3), despite the legality of marijuana use under Maine law.  Possession of a firearm or ammunition by a marijuana user is a felony, punishable by 10 years in prison under 18 U.S.C. §924(a)(2).

When a person buys a firearm from a licensed firearms dealer, the person is required to answer a series of questions and swear to the truth of the answers on a “Firearms Transaction Record.”  In section 11(e) of that Record, the form asks, “Are you an unlawful user of or addicted to, marijuana or any depressant, stimulant, narcotic drug or any other controlled substance?”  Toward the end of 2016, for clarification and warning purposes, the ATF added the following language, in bold letters, immediately following that question, “Warning:  The use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medical or recreational purposes in the state where you reside.

Federal law provides, “It shall be unlawful…for any person in connection with the acquisition or attempted acquisition of any firearm or ammunition from a licensed…dealer or licensed collector… knowingly to make any false or fictitious oral or written statement…intended or likely to deceive such dealer, or collector with respect to any fact material to the lawfulness of the sale or other disposition of such firearm or ammunition under the provisions of this chapter.” 18 U.S.C. §922(a)(6).  A violation of this statute, such as answering question 11(e) of the Firearms Transaction Record in the negative when the person is in fact a user of marijuana, is a felony, punishable by up to 10 years in prison under 18 U.S.C. 924(A)(2).

This is dangerous stuff to play with.  Taking a chance and hoping not to get caught is definitely not in the same league as, say, speeding and hoping not to get caught.  Anyone who shows up on the federal radar screen and is pursued for this will wish they’d chosen one or the other—marijuana use, or possession of firearms or ammunition.  Under federal law, guns and weed do not mix, and anyone who attempts to deceive the feds about mixing the two is turning it up a notch in an already very dangerous and foolish game.  Just saying…

The above is informational only.  I’m not giving legal advice here, just reporting the news.  To quote Joe Strummer, “This is a public service announcement,” except without the guitars.


Update April 28, 2018:  Check out this story from the morning news.  Five guys from central Maine were indicted in federal court this month for firearms crimes.  Two of those guys were indicted for falsely claiming not to be unlawful users of controlled substances, when they were in fact users of the pungent herb that is now legal under Maine law.   The feds don’t have a sense of humor about this stuff, and if they think they can prove you have guns and smoke or eat dope, they’ll hunt you down for a prison sentence just as quickly as if you smoke or eat dope and lie about it when you buy a gun.  Once again, just saying…  If you are a gun owner and wonder how the feds can possibly prove you use weed, you really don’t want to find out.