At some point over the next couple of months the Supreme Court is likely to rule that the federal prohibition on gun ownership for marijuana users violates the Second Amendment, but for now it’s still illegal for any “unlawful” user of drugs to purchase or possess firearms, even if they’re not in violation of state law.
That federal prohibition led to a pair of Jersey City police officers getting reassigned for their off-duty consumption of marijuana, but the New Jersey Court of Appeals recently sided with the cannabis-loving cops and ordered the Jersey City Police Department to reinstate them.
The Jersey City Police Department argued that the federal Gun Control Act barred the officers from possessing firearms, citing a provision that prohibits “unlawful users” of controlled substances from possessing firearms or ammunition.
The court rejected that argument, finding no direct conflict between state and federal law and concluding that firearms issued for official police use fall under a federal exemption.
The department argued that the federal law preempted CREAMMA [New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act], a position the court rejected.
What federal exemption would that be? The language of Section 922(g)(3) is pretty straightfoward: anyone “who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act” is prohibited from possessing any firearm or ammunition.
The appellate court cited Section 925(a)(1), which states:
The provisions of this chapter, except for sections 922(d)(9) and 922(g)(9) and provisions relating to firearms subject to the prohibitions of section 922(p), shall not apply with respect to the transportation, shipment, receipt, possession, or importation of any firearm or ammunition imported for, sold or shipped to, or issued for the use of, the United States or any department or agency thereof or any State or any department, agency, or political subdivision thereof.
Huh. So it does appear that police officers can possess firearms even if they use marijuana (or harder drugs) while off-duty, at least under federal law… and only if the guns they use on the clock are issued by the department. In Jersey City, though, officers are required to purchase their own duty weapon, which arguably isn’t covered by the exemption.
The appellate court also rejected the department’s claim that it cannot comply with both the Gun Control Act and New Jersey’s marijuana laws. According to the court, its up to the feds to prosecute these officers for violating Section 922(g)(3). Since there’s nothing in state law forbidding them from using marijuana while they’re not on duty, the department doesn’t have any standing to reassign them to duties that don’t involve carrying a gun on the clock.
If you’re not a member of law enforcement, though, good luck trying to legally possess a firearm. The website New Jersey Cannabis Information states:
You cannot purchase a gun in New Jersey if you have a medical marijuana card or are registered under the state’s medical marijuana program. New Jersey abides by the federal law prohibiting users of controlled substances from possessing firearms. As a medical marijuana card is considered evidence of unlawful marijuana use under federal law, a firearms seller in the state will not sell a gun to a medical marijuana cardholder.
Now, this double standard may become moot depending on what the Supreme Court says when it releases its opinion in U.S. v. Hemani later this term, but for now it sure looks like police in the Garden State can smoke up to their heart’s content while they’re off duty without losing their ability to carry or even purchase a firearm, while the average citizen cannot, under any circumstances, consume marijuana without sacrificing their Second Amendment rights.
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