After President Joe Biden's son, Hunter Biden, was convicted of three federal gun charges for lying about his drug use on an official form, people on both sides of the political aisle were concerned about how the ruling might impact Second Amendment rights.

Former Mobile County Commissioner Stephen Nodine was sentenced to 15 months in jail in 2010 on similar charges when he admitted to recreational marijuana use while in possession of a firearm. Unlike Hunter Biden, who filled out a form, Nodine said he was unaware of a law that could bar him from owning a gun for what he described as occasional pot use. 

Even with more states legalizing cannabis and Alabama’s efforts to create a medical marijuana market, cannabis is still a Schedule I substance under the Controlled Substances Act, meaning it’s illegal federally the same as heroin and other hard drugs. 

Nodine and others have pointed out that the conflict between state and federal laws could unknowingly make criminals of otherwise law-abiding gun owners.

"Now that marijuana is legal in 27 states, what are you going to do? You going to go prosecute all the people with guns?" Nodine told 1819 News. "It's a law that is certainly intended for bad felons who have in their possession firearms. I don't think it was meant for every day addicted drug users because we'd be locking up everybody, or a large percent of those."

Vince Schilleci, chief legal officer of dispensary license awardee CCS of Alabama, said the state-federal tension has already led to competing court rulings. He gave the example of U.S. vs. Harrison, where Oklahoma resident Jarad Michael Harrison was indicted in 2022 for possessing a firearm while being an unlawful cannabis user in violation of 18. U.S.Code Section 922(g)(3). The federal district judge in that case ultimately held that “Harrison's mere status as a user of marijuana” was insufficient to infringe on his right to bear arms.

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However, in U.S. vs. Bird, a case with facts similar to Harrison’s, Schilleci said a federal judge upheld 18. U.S.C. Section 922(g)(3), finding the defendant, Ethan Blue Bird, could be prosecuted for possession of a gun while being an illegal marijuana user.

“I believe in both cases, neither of the defendants possessed a valid medical cannabis card,” Schilleci told 1819 News in an email. “Things get even more squirrely when you review the FBI Memo from 2019 discussing 922(g)(3). Per the memo, possessing a medical cannabis card alone is enough to establish an inference of use. However, a medical cannabis license holder (i.e., integrated, dispensary, cultivator, processor, secured transport and testing) would not disqualify an individual under 922(g)(3).”

“Let’s take it even further,” he continued. “Suppose I have surgery and I’m prescribed an opioid (like Percocet or OxyContin). I don’t believe that the prescription would prohibit me from purchasing a gun. If that’s the case, why should medical cannabis used to treat qualifying conditions be any different?”

In a previous interview, Marshall County Sheriff Phil Sims told 1819 News he was less concerned with federal regulations than with what his deputies would have to deal with if and when medical cannabis hits dispensary shelves in Alabama.

"People say, 'Well, it's against federal law.' Well, it may be. Get me a federal agent down here to do the arrest and see how that works out. You aren't going to get one," he said.

Schilleci said the simplest solution to the legal confusion would be to reschedule marijuana, like President Joe Biden has hinted at doing since he asked federal agencies to look into the issue in October 2022.

“This is why rescheduling is so important,” Schilleci said. “Whenever you have patchwork laws, unintended consequences emerge, and the wrong regulators can take advantage.”

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