About two years ago we reported on a potential problem that exists because of a conflict between state and federal law and how this can cause problems with a Gun Trust that is not properly drafted.
Now the BATFE has issued an open letter to FFLs that users of medical marijuana are to be excluded from possessing or owning firearms or ammunition. BATFE cites the Gun Control Act of 1968 as authority for this order, which states that it shall be unlawful to sell or otherwise dispose of any firearm to any person knowing or having reasonable suspicion to believe that such a person is an unlawful user of or addicted to any controlled substance.
As of July 2013, eighteen states have legalized the use of marijuana in some form. Another 6 have pending legislation. Of those eighteen states, sixteen have legalized marijuana usage for medicinal purposes, while Colorado and Washington have also legalized the drug for recreational use. It is important to realize that while these states have passed their own marijuana laws, the possession, use, and distribution of marijuana is still illegal under federal law, which trumps the state laws. The Controlled Substances Act, enacted into law in 1970, categorizes marijuana as a Schedule I controlled substances. So although some states say it is “legal” to use marijuana, under the Gun Control Act, marijuana users are considered “prohibited persons” to whom the sale of firearms and ammunition is illegal.
The list of arguments against this mandate is endless, as you can imagine. Opponents find it unprecedented that receiving a medical marijuana license to help with a patient’s glaucoma can give the government the right to take away the patient’s Second Amendment right.
Those with Gun Trusts should be very careful not to allow individuals who use marijuana to be in possession, or control of firearms or ammunition as this could subject the individual to 10 years in prison. This is only one of the many reason why a normal trust which would not prohibit such actions of beneficiaries should not be used for firearms. If you have a regular Trust or one that does not have specific and detailed directions for the ownership, transfer and possession of firearms, contact us to find out about amending your trust to include language to protect your family and friends from inadvertent criminal liability.