Missouri just saw the passage of Amendment 2 in November 2018, making it one of over 30 states in the country that has decriminalized cannabis possession and use for medical purposes once the law goes into effect December 6, 2018. But marijuana is still illegal federally.
Back in the 1960s under a Nixon presidency, the Controlled Substances Act was enacted into law by the federal Congress. The CSA classified marijuana as a Schedule I controlled substance – the same schedule for LSD and heroin. Interesting, cocaine is a Schedule II, which is a less stringent classification than Schedule I. Because of this, cannabis cannot be transported across state lines. This is true even if it is legal in a neighboring state. Let’s say you get certified by your doctor after December 6, 2018 in Missouri. Medical marijuana is legal in Illinois. You are not allowed to drive to Illinois and obtain cannabis and bring it back to Missouri. Under federal law, you can only obtain your medical marijuana within Missouri’s borders, and even then, only from a licensed dispensary within the state, unless you have permission to cultivate your own plants at home.
Businesses legally operating within a state that has legalized cannabis for medical use only are protected from federal prosecution under the Rohrabacher-Blumenauer Amendment, which has been tagged onto each Congressional spending bill since 2014. Congress will vote on making the Amendment permanent in their next session. The Amendment essentially instructs the Department of Justice to use its funding to go after more serious crimes, de-prioritizing raids and other legal action against business owners and patients operating lawfully in states that have legalized medical marijuana sale, use, cultivation, and possession.
However, federal legalization might not be too far off in the future. Senator Elizabeth Warren (D-MA) with bipartisan support, has sponsored SB 3032, which would remove medical cannabis from the CSA as a Schedule I controlled substance. Also on the legislative docket for the next Congressional session is the McClintock-Polis Amendment, which would expand the Rohrabacher Amendment to recreational cannabis as well as medical marijuana. Regardless, federal legalization will take time because Congress will have a process of decriminalization and re-scheduling to undertake before meaningful legalization can occur. If and when federal legalization occurs, it will present many opportunities, but those opportunities might mean that small business owners could be forced out by big money investors who are poised to buy up the market.
Marijuana’s status as a federally illegal substance has some major impacts on patients and business owners. For example, business owners cannot take tax deductions on their business expenses. Marketing is difficult, because companies have to avoid interstate commerce. Facebook has even removed pages and posts without warning. Most banks, since they are federally regulated, will not loan money to business owners for start ups, and will not accept banking relationships with medical marijuana dispensary or business owners. Despite all this, the federal government still requires business owners to pay their quarterly taxes, and business owners have been known to take bags of cash to their local IRS offices for processing – at great physical and financial risk to entrepreneurs.
Veterans cannot legally obtain medical marijuana certification from VA doctors. Democrat Senators from Florida and Hawaii recently introduced the Veteran’s Medical Marijuana Safe Harbor Act, which would allow VA doctors to certify veterans as qualifying patients for medical cannabis use without fear of federal prosecution. Until this law passes, veterans must pay out of pocket and find a non-VA doctor to certify them. All qualified patients cannot obtain a “prescription” since they cannot obtain cannabis from a pharmacy, and no certification is covered by insurance, which is also a federally regulated industry.
Once certified, a patient that has received a medical card will also be federally prohibited from purchasing a fire arm. One doctor in Pennsylvania, himself a medical marijuana user, has filed suit against the interim Attorney General of the United States, arguing that the prohibition violates his Second Amendment rights. While federal circuit court of appeals has disagreed with that argument just within the last few years, the doctor has taken a different stance: “Under the medical marijuana act in Pennsylvania, it’s my view that the prohibition doesn’t apply at all. You’re only prevented from purchasing a firearm if you’re an unlawful user of, or addicted to a controlled substance. Pennsylvania statute defines an unlawful user as someone who does it without a recommendation from a doctor,” Weston said. “Under state law, it seems to us that a medical marijuana patient with a state-issued card is not an unlawful user of a controlled substance. That statute should not apply at all.” Pennsylvania used to provide names of certified patients to law enforcement for their databases but is ceasing that practice. The doctor’s attorney made a cogent point on the issue, “you can be an opioid addict, or buy a bottle of rum, drink it and go to a store and buy [a gun],” Sacks said. “But a person who is registered as a medical marijuana patient in Pennsylvania, and has a very small dosage of THC, can’t own a gun to protect themselves or hunt.” Each state has their own laws, making the intersection between medical marijuana and gun ownership a gray area that will likely be sorted out as the nation approaches full legalization.