If You Shoot, Don’t Toke. If You Toke, Don’t Shoot

Santa Fe


Note: I am not a lawyer and the following is not legal advice from an attorney. The closest I get to the bar in New Mexico is Beer Creek Brewing Company.

Much is in the news regarding the legalization of cannabis products for recreational as well as medicinal consumption in New Mexico, even on the Governor’s official web site. What is curiously missing in all of this hoopla are the legal issues of which there are several important ones for folks in New Mexico, including issues concerning your employment and your Second Amendment rights.

First, your employer may still prohibit you from using cannabis products and may fire you if you fail a drug test or are caught in possession. This includes at least one local national laboratory and likely other agencies that are tied to Federal contracts and grants. Federal law still considers cannabis a Schedule I substance with no legal, legitimate public use. Plus, employers are allowed, as well as mandated, to have policies and procedures related to safety, depending on what the business does. There are a lot of issues regarding employment, but the employer is required to ensure employees are informed of the rules of the game.

Secondly, regardless of what New Mexico legalizes, firearm ownership is in part controlled by Federal law. A cannabis user’s Second Amendment right to keep and bear arms is in jeopardy. The Gun Control Act (GCA), codified at 18 U.S.C. § 922(g), makes it unlawful for certain categories of persons to ship, transport, receive, or possess firearms or ammunition, to include any person in several categories, one of which is someone “…who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act, codified at 21 U.S.C. § 802)”. This list includes “marihuana” and “tetrahydrocannabinols”, i.e., cannabis.

Indeed on the National Instant Criminal Background (NICS) check form, ATF 4473, is found question 21(e), “Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance? Warning: The use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medicinal or recreational purposes in the state where you reside.” So, while New Mexico now says you are not “an unlawful user” of cannabis per the language of 18 U.S.C. § 922(g) with regards to state law regarding possession or use of cannabis, Uncle Sam disagrees with regards to a cannabis user’s possession or use of firearms per the GCA. Hmmm … maybe this will be litigated more (see below). For now, I think Uncle Sam’s opinion is the law but I’m not a Constitutional law scholar and don’t play one on TV.

Since cannabis metabolites in your body can result in a positive test for as long as a month, depending on the test, ringing the dope-o-meter should be a concern even if you are not impaired. That is a significant difference from blood alcohol tests. So while you may be perfectly competent to work, drive, or handle a firearm, you can still test positive with serious financial and legal consequences.

For firearms aficionados, simply put, if you attempt to buy a firearm in New Mexico and are a cannabis user, you will likely fail (by Federal standards) or be compelled to lie on the background check form. Lying on the form is in itself a Federal offense. As a cannabis user, even owning or possessing a gun can potentially get you on the wrong side of Federal law (see the Green Light Law Group link below), presumably even if the State authorities look the other way as is the case in at least some Colorado locations. There likely will be some confusion on what shakes out of this, as we can see from Colorado, in this article: “Can you own a gun in Colorado if you smoke pot?”

“In September 2016, a federal appeals court covering nine western states upheld a ban on firearms sales to residents who hold medical marijuana cards.”

Of course, that was the 9th Circuit, which never saw a gun regulation it didn’t approve of, but the Supreme Court denied a petition to appeal the ruling. One can hope for a challenge and a different ruling before our 10th Circuit, which would, I think, be binding here but create a circuit split and possibly compel the SCOTUS to grant certiorari (I’m not a lawyer but I love those big legal words). Don’t hold your breath and most of us don’t want to volunteer to be that test case.

So, the bottom line? Before you head out to the local pot shop, think carefully about these issues. Hopefully, someday, both state and Federal law will be on the same page. The U.S. House just passed a marijuana legalization bill but it faces a rough road in the U.S. Senate. Until the Feds legalize cannabis, caveat emptor.

More recent stuff here from the Green Light Law Group: Marijuana Use and Gun Ownership: What You Need to Know (August 2021)