Medical Marijuana and Guns: Can You Own a Gun With a Medical Card in Florida

January 22, 2018 Don Pumphrey, Jr. Criminal Defense, Drug Charges Florida Medical Marijuana Gun Rights, Guns, Medical Marijuana Social Share

Update: In 2023, Appeals Court Rejects Federal Gun Ban for Marijuana Consumers

In the state of Florida, you can legally own a gun, or semi-legally treat an illness using marijuana, but the harsh reality is that you can’t do both.

The technical term for a dispensary shop is Medical Marijuana Treatment Center (MMTC). There are currently over 400 open dispensaries operating in Florida, with a wide variety of medical-grade THC and CBD products. As of April 2022, approximately 707,000 individuals in Florida have been legally approved for a medical marijuana card. 

.[2] There were originally some questions about how difficult it would be to implement the voter-created addition to the Florida Constitution, but now it appears as if lawmakers are finally on track. There are still roadblocks to those hoping to use marijuana legally. First, non-medical use is unquestioningly illegal in the state of Florida, and you can be arrested without a medical card. Second, marijuana is a controlled substance according to federal law, and illegal under the Controlled Substances Act.[3] This means, that even with a medical card, the federal government can come after marijuana users. There is wide support for legalization though; 29 states, and D.C. have legalized at least some sort of marijuana use. Alaska, Colorado, Nevada, Oregon, Washington, and (as of the new year) California all allow full recreational use.[4] Even though the president and the justice department have recently made statements that prosecutors would have more power to go after marijuana, this seems to only be against large scale distribution.[5] Those using marijuana with a medical card have very little to worry about as far as federal law enforcement goes.

This state of semi-legality has some people wondering, if it’s technically still illegal, but without enforcement, how does that affect other rights? Federal law states that any user of illegal drugs cannot be in possession of a firearm.[6] The legal community is fairly certain the feds won’t be going after marijuana users in decriminalized states such as Florida, but what about marijuana medical card holders who also own guns? At least one Florida firearms expert believes this may be an issue. Florida state Rep. Cord Byrd (R), from Jacksonville, warns that “Eventually, someone will get made an example of to dissuade other people from having both [a medical marijuana card and a firearm]. People need to be aware they could run afoul of federal law if they come across the wrong federal prosecutor at the wrong place at the wrong time.”[7] There is no gun registry, so it’s impossible for that hypothetical federal prosecutor to go hunting without probable cause. No matter the real-world risk It is certainly not advised to be in possession of both.

The question that we have received from multiple people is a little bit different, does a marijuana card interfere with my Concealed Weapon or Firearm License (CWL)? The direct answer is no. While federal law likely allows federal agents to force Florida to retract that license, just having one is not a violation of federal law. The issue is not with the license itself, but rather harkening back to the original violation, seldom would a person own a CWL without also owning a firearm, a right that is out of bounds for a marijuana card holder.

So far, this article has not discussed any situations where it is likely any federal prosecutor will come after you. Our law firm does not advise taking part in any illegal activity of any kind, but the truth is that federal prosecutors are not currently going after medical marijuana users, card-holders and users who own a firearm which never leaves the house are also unlikely to ever be prosecuted. If you wish to engage in any of this, do so at your own risk, but the risk is at least minimum compared to most crimes. The real danger for medical marijuana users who own firearms comes from fraud. In order to purchase a firearm, you must fill out an ATF form 4473. This form includes asking if the firearm purchaser is addicted to, or a user of any controlled substances. This includes marijuana, and a medical card means it is implied you are a user. The holder of a card has two options, lie and face 5 years in prison for something that is easily verifiable by the ATF, or tell the truth and almost for sure be rejected. I would like to emphasize once again, our firm does not recommend taking part in any activity that is technically or clearly illegal, but of all the actions mentioned thus far in the article, this is the most dangerous. If you were to theoretically purchase from a private individual, this would not require a form 4473, but is still illegal and inadvisable.

Conflict Between State and Federal Law

Local state laws face three federal laws regarding legal possession and purchase of medical marijuana, which are the following:

• The Controlled Substance Act – THC and cannabis both classify under a Schedule 1 drug, which means it is prohibited to produce, possess, or sell it.
• Title 18, Section 992 of the U.S. Code – It is illegal for anyone to buy or possess a firearm if they use a controlled substance, including medical marijuana.
• Form 4473 – The ATF requires a form to be filled out when purchasing a gun from a public gun store, which requires you to answer questions about using any controlled substances, including medical marijuana. If a person answers honestly on the 4473 form that they obtain a medical marijuana license, they will be denied access to purchase a gun. If they lie and say they do not have a medical marijuana license, they risk getting arrested and spending up to five years in prison.

Florida’s Current Situation on Marijuana and Guns

With the medical marijuana field growing more popular in the state, Florida is trying to make it legal to own both a medical marijuana card and own a gun. The following are two contributing factors that are making it easier for Florida citizens to obtain both:

• Gun Show Loophole – Purchasing a gun from a gun show often implies that it is from a private seller. This means that the transaction can be made without filling out the 4473 form. Under federal law, it is not technically legal, but it is a way to buy a gun without the worry of the 4473 form preventing medical marijuana users from buying a gun.
• Florida Agricultural Commissioner Nikki Fried – Fried currently obtains a medical marijuana card and a concealed carry permit. Her office has made it clear that they will not deny Florida citizens from purchasing a gun with a medical marijuana permit.

Fried made the official statement on Twitter:

“On concealed weapons licenses and medical marijuana cards, the issue is pretty clear — Florida Statute 790.06 provides a limited list of factors (such as felony arrests, whether the instructor deems the applicant capable, etc.) upon which our Department must approve or deny a concealed weapons license. Therefore, the Department is prohibited from asking questions outside that scope, which would include medical marijuana card possession.”

In April 2022, Nikki Fried announced that she plans to sue the Biden administration to attempt to block the federal rule that prevents medical marijuana users from purchasing a gun or carrying a concealed-carry permit.

The lawsuit will argue that the 4473 form violates the Second Amendment right of lawful medical marijuana users. In addition, she believes that it runs afoul of the congressional budget prohibition on federal agents’ interfering with state-sanctioned cannabis laws.

In a statement Fried gave to NBC News, she said, “medical marijuana is legal. Guns are legal. This is all about people’s rights. And I don’t care who I have to sue to fight for their freedom.”

It will be interesting to see if the lawsuit will go through, and if it can make a difference in the state of Florida for medical marijuana users to purchase a gun.

Ultimately, in the state of Florida, you can either own a gun, or treat an illness using marijuana, unfortunately both is not an advisable option due to federal law. If you have any questions about how state and federal law affect your rights, contact a qualified attorney who can help you.  Our attorneys are experienced in Florida and federal gun and drug laws, and can answer questions on how best to approach these activities. If you have any issues and you’re arrested or cited by law enforcement then you need an attorney who will work hard to defend your rights in order to have the best possible outcome. Call our office any time at 850/681-7777 to set a free consultation. 

[2] Skylar Swisher, Medical marijuana industry expands with new South Florida dispensary,

[3] 21 U.S.C. § 811 (2012).

[4] Charlie Savage & Mark Healy, Trump Administration Takes Step that Could Threaten Marijuana Legalization Movement, New York Times, Jan 4, 2018, https://www.nytimes.com/2018/01/04/us/politics/marijuana-legalization-justice-department-prosecutions.html.

[5] Id.

[6] 18 U.S.C. § 922 (2012), https://www.law.cornell.edu/uscode/text/18/922.

[7] David Goodhue, Federal Law Prohibits Medical Marijuana Users from Owning Guns, Fl Keys News, Jan 4, 2018, http://www.flkeysnews.com/news/local/article193039509.html.

Blog Written edited on 4/26/2022 by Karissa Key

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