In 2021, Connecticut took the legal leap into legalizing marijuana for recreational use and. Prior to that year, marijuana could only legally be sold for medical purposes, requiring an individual to obtain a medical marijuana card in order to purchase from a dispensary.
Of course, Connecticut was not the first state to do so; Colorado, in particular, made a name for itself as the first state, followed shortly by Washington, to legalize marijuana for recreational use in 2012. Next door neighbor Massachusetts has been selling cannabis for recreational use since 2016, prompting Connecticut residents to cross the border if they wanted to purchase marijuana outside the confines of what would otherwise be an illegal drug purchase.
To date, a total of 37 states have approved marijuana for medicinal use and 21 states have approved the sale of marijuana for recreational use, according to the National Conference of State Legislatures.
Some states, including Connecticut, took the additional step of erasing past convictions for low-level marijuana-related offenses. In December of 2022, Gov. Ned Lamont announced that 44,000 past marijuana-related convictions were to be expunged in Connecticut. Although the state is having some trouble erasing convictions prior to 2000 when court records became digitized, the process is underway.
Connecticut’s legalization of cannabis and cannabis-related products was another step toward legalizing activities long-considered vices – the state also legalized online gambling and sports betting that same year and has previously done away with restrictions on alcohol purchases on Sundays, one of Connecticut’s so-called “blue laws.”
Despite the growing number of states that have legalized marijuana for either medicinal or recreational use, marijuana remains a Schedule 1 illegal narcotic in the eyes of the federal government and neither the president nor Congress appears poised to change that anytime soon.
But the conflict between state and federal law regarding marijuana creates some difficult situations. For one, marijuana sellers have limited access to banking services, as the banks don’t want to run afoul of federal law.
The U.S. Justice Department in 2013 had taken the view that while marijuana remained an illegal narcotic, it was essentially trusting states that had legalized cannabis to take a tough, proactive stance to ensure their regulations enforced eight areas of concern to the federal government, including distribution to minors, preventing criminal enterprises and preventing the use of firearms in the cultivation and growth of marijuana.
Although the memorandum from the Justice Department gave leeway to states that legalized marijuana, federal prosecutors still had the discretion to pursue marijuana-related offenses “in particular circumstances where investigation and prosecution otherwise serves an important federal interest,” leaving the matter in a legal gray zone.
However, in 2018, former U.S. Attorney General Jeff Sessions rescinded that memo and issued his own, re-establishing that marijuana remained illegal under federal law and directing federal prosecutors “to enforce the laws enacted by Congress and to follow well-established principles when pursuing prosecutions related to marijuana activities.”
Essentially, the guidance on pursuing or prosecuting marijuana offenses at the federal level remains subject to the whims of whoever is in charge, creating a complicated legal landscape for those seeking to do business in the cannabis industry.
Another complicated situation, however, involves guns and the ability to purchase firearms.
Connecticut, home to the tragic Sandy Hook mass shooting that claimed the lives of 26 students and teachers at Sandy Hook Elementary School in 2012, also has some of the strongest gun control laws in the country. While Connecticut lawmakers have been easing or eliminating laws surrounding marijuana and gambling, they have also been pushing for more gun control laws to be passed.
Gov. Lamont this year has proposed a total of 15 new gun laws in Connecticut, looking to curb gun violence. In the wake of pandemic, murder and non-negligent homicide rates have risen both nationally and in Connecticut, according to the 2021 Crime in Connecticut report. Lamont’s proposals include limiting handgun purchases, implementing a 10-day waiting period, restricting open carry and raising the legal age to purchase long guns like rifles.
At the same time, the federal court system, including the U.S. Supreme Court has been heading in the opposite direction. In 2022, the Supreme Court issued a decision in New York State Rifle & Pistol Association, Inc. v. Bruen, deciding that New York’s requirement that an individual show proper cause for obtaining a pistol permit violated the Second Amendment. The New York Bar Association called the decision “one of the most significant decisions to be issued on the Second Amendment in over a decade.”
The Bruen case has trickled down to other federal court cases. Earlier this year, Connecticut Attorney General William Tong, Sen. Richard Blumenthal and various women’s rights groups raised the alarm over a decision from the 5th circuit court of appeals that ruled it was unconstitutional to prohibit people who had restraining orders against them from possessing firearms – a decision at odds with Connecticut law.
Although Connecticut’s restriction on individuals with restraining orders from possessing firearms remains enforceable, it prompted fears that a similar lawsuit in Connecticut could potentially undo that law.
In essence, Connecticut’s laws regarding firearms and marijuana are moving in one direction, while the federal government and the federal court system are either at odds with those laws or moving in the opposite direction.
So, what does all this mean for a resident in Connecticut, where one can legally purchase and use marijuana either for medicinal or recreational use, but that same substance remains illegal at the federal level, who wishes to obtain a pistol permit or purchase a firearm?
In the words of Rep. Craig Fishbein, R-Wallingford, a practicing attorney and firearms instructor, “It gets a little sticky.”
In order to purchase a firearm in any state one must fill out Federal Form 4473 Firearms Transaction Record for the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), and that form includes a series of questions to which one must answer “No” in order to legally buy that gun.
Question 21g, which was recently updated, reads as follows: Are you the unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance? Warning: The use of 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.
To lie or answer untruthfully on this form is a federal felony. So, it appears that in the eyes of the federal government, if you hold a medical marijuana card or use marijuana, you can’t buy a gun as it would require that you essentially lie on this federal form.
However, Fishbein says that is not necessarily the case, because the form could be subject to the nuances of legal language, in particular user of.
“It gets a little sticky,” Fishbein said. “Just because you have a card doesn’t mean you can’t purchase. They are issuing permits to individuals that have cards. So, one who has a card doesn’t necessarily use it.”
“If I have a card and I don’t use it and therefore I’m not in possession of marijuana, I believe perhaps I would be able to answer that question ‘no’ and be able to acquire a firearm,” Fishbein said. “However, if I’m a medical marijuana card holder and I have marijuana then I am in possession, and I am unlawful.”
So, according to this reading, one can be a medical marijuana card holder without necessarily using marijuana and, in that unlikely case, can potentially answer that they are not a user of marijuana, although it is not entirely clear.
This nuance and potential legal argument has not necessarily held up in court cases, although people have tried.
The United States Court of Appeals in 2016 held that federal law prohibits medical marijuana card holders from legally purchasing firearms in Wilson v. Lynch, a case that originated out of Nevada. The ATF had instructed firearm dealers to assume that a medical marijuana card holders use marijuana and therefore could not sell to card holders.
S. Rowan Wilson alleged that although she held a medical marijuana card, she did not actually use the substance. The court agreed that she was not “an unlawful user of” marijuana but held that the government’s interest in preventing violence by drug users was reasonable and therefore denied her claim, adding that if she rescinded her card, she would be allowed to purchase a firearm.
The ban on medical marijuana card holders from purchasing or possessing firearms has even extended to police officers in Connecticut. In 2018, Bridgeport Police Department Sgt. Donald Bensey was suspended from his job because he possessed a medical marijuana card. He filed a lawsuit, but that suit was dismissed when Judge Janet Hall determined that federal law barred him from possession of a firearm due to his card holder status.
Bensey was reinstated after giving up his medical marijuana card, but according to court records, refiled the lawsuit in March of 2020 alleging the City of Bridgeport is violating the state’s ability to enact laws and “contradicts and interferes with protections provided to citizens of this State pursuant to the Medical Marijuana Statute.” The case appears to be ongoing as of January 2023.
A recent federal circuit court decision out of Oklahoma, however, pushed back against the ban on marijuana users possessing guns. Jared Michael Harrison was pulled over by police while driving to his job at a marijuana dispensary. He was found to have marijuana and a handgun and subsequently arrested.
A U.S. District Judge, however, found that it was unconstitutional to strip Harrison of his Second Amendment rights merely for possessing and using marijuana. While the decision garnered headlines across the country, Fishbein says the case was “fact specific,” likely has no application outside that individual incident and had more to do with whether one can be addicted to marijuana.
“It’s very nuanced,” Fishbein said. “It appears here that this relief is just with regard to this individual. So, the court, at least based on what I’m seeing, the court didn’t say you cannot enforce marijuana bans at all with regard to firearms, they said with this particular person you could not utilize that with.”
Similar legal language nuances come into play for recreational marijuana users because the ATF form doesn’t define “unlawful user of.” The language uses the present tense, essentially asking if one is currently a user of or addicted to marijuana.
“So, I could have used that substance a month ago. Am I the unlawful user of? I don’t know,” Fishbein said. “In Connecticut, post decriminalization and legalization, I could use tomorrow and then I would be the unlawful use of. So that’s where it gets… it’s all effed up.”
One of the reasons it’s all effed up, and one of the reasons Fishbein argued against marijuana legalization on the floor of the House of Representatives, is the Supremacy Clause of the U.S. Constitution, which basically says that federal law trumps state law, which is the primary problem for banking and firearm purchases in states that have legalized marijuana.
“To my knowledge no court anywhere in the county has found a state’s legalization of marijuana is lawful given the supremacy clause of the constitution,” Fishbein said. “So, you come into the room with that situation to begin with, but for the purchase or transfer of any firearm in Connecticut, I think anywhere in the country, frankly, you’re going to run into this question and that’s where it becomes problematic.”
The Rev. Cornell Lewis grew up in Detroit and, as a youth, got into some trouble resulting in jail time. Now, at 73 years old, Lewis left the rough and tumble ways of his youth long ago.
He worked three jobs to put himself through college, and attained two degrees, including a master’s degree in social work and a degree in theology. He worked as a social worker for many years and in the time since, has become an activist and started the Connecticut Self Defense Brigade, which trains activists to protect people in social justice marches from counter-protesters.
That includes firearms. The Self Defense Brigade recently joined Huey P Newton Gun Club, PowerUp Manchester and the John Brown Gun Club for their second annual Legal Armed March. The advertisement stated, “Be sure to bring your permit!”
But getting that permit can be more difficult for some. As Lewis recalls, his criminal record from his youth came back to haunt him when he attempted to get his pistol permit. “Should what I did when I was 18 stop me from having a permit? Some people say it depends on what you did,” Lewis said, adding that law enforcement noted his background when he applied.
He was ultimately granted his pistol permit by appealing to the Connecticut Board of Firearms Examiners because he had remained a law-abiding citizen and because of his accomplishments. He says he quoted Aristotle on his permit application.
But just nine days after receiving his permit, Lewis’s firearms and permit were confiscated by police, citing some previously unknown felony from Detroit. Lewis contacted his attorney and, after showing there was no documentation tying Lewis to this felony, had his permit and firearms all returned to him, but it took a while.
Lewis believes the confiscation was political, saying those in authority are uncomfortable with his activism and are trying to ensure he remains unarmed because of his belief that activists should be able to defend themselves utilizing the Second Amendment.
“In the world view of a lot of people, I’m not saying myself, there are certain people they think should not have guns and some of those people are the ones that use narcotics or use marijuana or other things,” Lewis said. “How do we make that determination? What line do we draw? Because there are people in society that are dealing with tangible problems that many people say, well, they shouldn’t have a gun. Statistics show that there are a lot of people with cognitive issues, drinking problems, drug problems, with other kinds of issues, so are we going to move down the list saying well this person, this person, that group?”
Part of Connecticut’s marijuana legalization law included the erasure of prior convictions for low-level marijuana related offenses – convictions that previously would have denied an individual the right to obtain a permit or eligibility certificate and purchase a firearm, but there appear to remain roadblocks.
Under Connecticut’s legal cannabis law, convictions for possession of under four ounces or less of cannabis between 2000 and 2015 were erased, but the statute governing handgun and long-gun eligibility certificates disqualifies anyone who received a misdemeanor for possession of 2 ounces or less of cannabis after October 1, 2015.
Barring that, however, an individual who was convicted of a marijuana misdemeanor involving possession of four ounces or less between 2000 and 2015 should be able to get their eligibility certificate.
A pistol permit, however, is an entirely different animal, according to Fishbein, and one’s ability to get such a permit may depend on where they live – part of the list of people who can and cannot have guns, as Rev. Lewis put it.
Unlike eligibility certificates, which are processed by the State Police, pistol permit applications are handled by the local police department, and they can be denied at will – what is known as the “suitability standard.”
“Presently, even if somebody has no criminal record, they can be denied a pistol permit,” Fishbein said. “Departments are presently allowed to subjectively use anything basically against an applicant to deny a permit.”
While eligibility certificate applications take no longer than 90 days to turn around, the permit process can take much longer because certain departments, most notably in cities, are allegedly slow walking the application process, putting people on a waiting list just to apply for the permit. It is the subject of a federal lawsuit the Connecticut Citizens Defense League has filed against the cities of Hartford, Bridgeport, Waterbury and New Haven, with Fishbein and Rep. Doug Dubitsky, R-Chaplin, as the representing attorneys in CCDL v. Thody.
“As of January, New Haven was giving people dates in April just to apply. Part of the problem is the statute right now says they’re supposed to get back to you within 8 weeks as the status of your application,” Fishbein said. “So, what they are being cute about doing is delaying the front end. When you delay somebody filing the application then the 8 weeks isn’t going to start to run and they’re blowing the 8 weeks anyway. Waterbury is even worse.”
Waterbury requires a release of authorization for financial, medical and education records to be eligible for a temporary pistol permit, which must be obtained before seeking the actual pistol permit from the Department of Emergency Services and Public Protection.
So, the pistol permit is subject to the suitability clause, allowing police departments to deny permits if they believe the applicant is not a suitable person to have a pistol permit, but that suitability is subjective, and certain departments are allegedly tying up the permitting system with lengthy wait times for merely filing the application, according to the lawsuit.
Certainly, such suitability standards could be applied to applicants based on their political activism like Rev. Lewis, or, perhaps, if someone has a history with marijuana or marijuana activism.
“It depends on people’s world view and how they view the world,” Rev. Lewis said. “I think the fault lies in how you view the world and how you see certain groups of people.”
For Rev. Lewis, however, the debate over issues like banning people who use marijuana from owning firearms, is “much ado about nothing.” There are bigger, more important issues underlying these laws that he says everyone sees but no one wants to acknowledge.
“It just seems as if people are flailing around or flitting around, moving around aimlessly without direction, looking for something as it relates to guns and how to keep them out of the hands of people they think might use them inappropriately,” Lewis said. “I think they’re just grasping at straws. I’ll be honest about it. It’s a much larger problem and I don’t think anybody knows exactly what to do and that’s why they’re coming up with things they think might help and I just don’t see it the same way they do.”
On a far-too-regular basis, there are murders involving guns and mass shootings. Despite the fact that the overall crime and murder rate has dropped in the United States since the early 1990s, the proliferation of mass shootings since the late 1990s, like the one that took place at Sandy Hook, have become a source of death, national mourning, frustration and calls for action. The larger question for Lewis, however, is what has changed?
Lewis says growing up in Detroit, particularly as families from the South began to move into the area, guns were a normal part of life; they were in people’s homes and, he says, in the northern peninsula of Michigan it wasn’t uncommon that someone would have an automatic weapon.
“I didn’t see anybody coming down to the town square or the marketplace using them on other people,” Lewis said. “People always in America have had guns as a hobby, as a means of protection. Something changed, the way people interact with other people.”
“There was not this great carnage that we see now,” Lewis said. “So, I think it’s a testament to what’s going on in society: fractures, fissures, tearing America apart, and until we address that I don’t think you’re going to be able to get anything that can come close to stopping the carnage and I think legislating who and who should not have a gun is an attempt at grasping at straws.”
For Lewis, those fractures and fissures in society have more to do with the allocation of resources, people feeling pressured and squeezed, fearful of an uncertain future. He may be right but how that can be solved or changed is likely far outside the bounds of legislation and, in the meantime, lawmakers at both the state and federal levels are left trying to combat gun violence through whatever means they can summon.
Sometimes those means are at odds with not only the Second Amendment and the federal government, but with logic. Marijuana remains a Schedule 1 narcotic, according to the Drug Enforcement Agency, which means a substance or chemical that has no medicinal value, even as the majority of states have legalized marijuana for medicinal use.
Cocaine, on the other hand, is listed as a Schedule 2 drug because of its high potential for addiction, along with drugs regularly prescribed by doctors like Vicodin, Ritalin and OxyContin.
Similarly, as more and more states legalize marijuana for recreational use, treating it more like alcohol than, say, heroin, research has found “alcohol misuse is much more of a risk factor for gun violence,” according to Guns and America, a now-ended project to track the issues surrounding guns in the United States.
Twenty states have laws on the books restricting gun access due to alcohol abuse, according to Giffords Law Center. Those states run the political gamut from Red to Blue to swing states, but Connecticut is not one of them.
The hodgepodge of federal and state laws regarding firearm access makes it complicated. Who can and cannot have a gun has become determined by various factors, including subjective determinants based on “suitability,” that breed ever more lawsuits aimed at ensuring individual rights are maintained under state gun laws.
“I think the larger issue is society is changing, and it has changed from when I was a teenager to now. I think there’s a fear that if it changes too much it will be unrecognizable to some people and maybe they won’t be able to live with what they have not seen before and have not experienced and so a lot of that has to do with the uncertainty of the future,” Lewis said. “But as far as guns are concerned, I don’t know if you can legislate away by saying who gets what and who doesn’t; can’t legislate away they carnage that we see.”
Maybe lawmakers can, and maybe they can’t. But it likely won’t come from restricting marijuana users attempting to legally exercise rights given to many others.
