No, you can’t smoke marijuana and buy a gun in any US state

NORFOLK, Virginia — The right to bear arms — enshrined in the Bill of Rights — is arguably part of our national DNA.

About a third of American adults, or 85 million people, now own a gun, according to a recent Gallup survey.

Marijuana is a hugely popular pastime, too. About 17% of U.S. adults — or 44 million people — now use weed on a regular basis, surveys show. Pot is now legal for recreational purposes in 23 states — including Virginia.

But the rise in marijuana usage conflicts with federal gun laws.

Using pot is still illegal at the federal level — listed with such controlled substances as cocaine, heroin, LSD and fentanyl. Weed is on a list of drugs “with no currently accepted medical use and a high potential for abuse,” the government officially declares.

Under federal law, you can’t legally buy a gun while being an active marijuana user, and pot users are barred from possessing one.

Just ask Deja Nicole Taylor.

Shortly after her 6-year-old son shot his first grade teacher, Abigail Zwerner, at a Newport News elementary school Jan. 6, federal agents found “copious amounts” of marijuana in searches of her purse, two bedrooms and a car. Taylor told agents she’d been smoking weed regularly for more than a decade — including when she bought the handgun seven months earlier.

“Because marijuana is legal in Virginia, she didn’t think she was doing anything wrong,” her lawyer, James Ellenson, said last week. “She was trying to be transparent with the detectives, the FBI and everybody else with law enforcement. She wasn’t trying to hide anything.”

But Taylor, 25, was hit with two federal felonies — lying on the background check form, and possessing a firearm as an unlawful marijuana user — that together carry a sentence of up to 25 years in prison.

‘Are you an unlawful user?’

Anyone buying a gun at a federally licensed firearms dealer must attest on a background check form that they’re not an “unlawful user” of marijuana or other drugs.

“Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?” the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives, or ATF, asks on the form.

And there’s no exemption if you live in a state that’s made pot legal.

“Warning,” the form says in bold. “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.”

If you check yes, you can’t buy a gun — and if you lie on the form, it’s a federal felony punishable by up to 10 years behind bars.

“She didn’t read every word on there,” Ellenson said of Taylor. “She didn’t read the fine print.”

But because the wording is there in black and white, not noticing the question is not considered a valid excuse.

Taylor entered a plea agreement in June in which she acknowledged she “knowingly” lied on the form and possessed both marijuana and the firearm.

In return for the guilty plea, federal prosecutors promised to ask for no more than two years to serve at her Nov. 14 sentencing. (Taylor separately pleaded guilty to a state child neglect charge, with prosecutors promising to limit their request to six months).

‘People don’t read’

Bill Winfree, the owner of Winfree Firearms in York County, issues his own warning when he hands the background check paperwork to customers.

“Do not lie on the form,” he tells them. “You lie on the form, they charge you with a felony.”

“I’m sure it’s confusing for a lot of people who don’t know better,” he said of marijuana being legal in Virginia but not federally. “But I urge people to read the questions.”

On July 19, 2022, Taylor walked into Winfree’s, on Route 17, and bought the small Taurus handgun. Nearly seven months later, her son took the gun to school in his backpack and used it to shoot his teacher.

Though Winfree has a record of Taylor’s purchase — and has her ATF background check form on file — he said he doesn’t remember the transaction.

“It’s unfortunate the kid had access to the firearm,” he said. “There’s no doubt about it. She was in the wrong for that.”

But if Taylor failed to read the form correctly, she’s not alone.

“People don’t read,” said Steve Dowdy, the owner of Bob’s Gun Shop, a large firearms dealer in downtown Norfolk. He said people often race through the forms as if they’re “going through the Apple terms and conditions” on their iPhones. “They click the box, and they’re ready to move on,”  he said.

“Try to explain to somebody that it’s legal — but it’s not, because it’s legal (in the) state but not federally — that gets pretty darn confusing for people,” Dowdy said.

The federal statute doesn’t say how far back someone needs to have used marijuana to preclude them from buying a gun, but Dowdy said his understanding is that the feds are mostly focused on people who are “heavy and daily” users.

Honest mistakes or lying?

Dowdy is under no delusions about his customers’ honesty.

“I would bet that many of (the marijuana users), if they come in here to purchase a gun, they’re gonna lie on that question,” he said. “That’s just my take on that. They’re not gonna say, ‘Oh, yeah, I’m an illegal user.’”

But, he added, “I just think most people don’t understand that they’re lying.”

It’s often an honest mistake stemming from weed’s legalization in Virginia, Dowdy said. Other times, customers reason that because a doctor recommended medical marijuana, they aren’t an “unlawful user.” (In fact, medical marijuana remains illegal at the federal level, too).

But there’s little gun shops can do to enforce the rules — aside from ending a sale when someone reeks of cannabis.

“What am I going to do, go to your house and search it?” a clerk at Bob’s Gun Shop asked.

When the Daily Press and The Virginian-Pilot interviewed customers at Bob’s two weeks ago, several expressed surprise about the federal prohibition. A couple customers said they were weed users, but apparently didn’t think that was a problem.

As a woman in her 20s waited at Bob’s for her background check to be approved, she told a reporter she smokes weed. And she said she didn’t recall a question about marijuana on the form she had just filled out five minutes earlier.

“Oh yeah, I guess it was on there,” she conceded. “But I don’t smoke that much … Only like on my birthday, stuff like that. Christmas.”

Charges are rare

President Biden’s son, Hunter Biden, stands accused of lying on the form in his 2018 purchase of a Cobra revolver. He’s further accused of possessing a gun as an unlawful drug user, according to a June indictment.

In Biden’s case, however, it was crack cocaine — not marijuana — at issue, according to national media reports. That case is still pending before a Delaware federal court.

But a comprehensive examination of a year’s worth of dockets in Hampton Roads’ two federal courts — in Norfolk and Newport News — shows the number of people charged with lying on the background check forms about drug usage can be counted on one hand. Those include lies about heroin, methamphetamine and Percocet painkillers, typically as part of larger crimes.

When it comes specifically to marijuana, only two people — Taylor and a 27-year-old Suffolk man — appear to have been charged with lying about their weed usage on the form and possessing a gun as an unlawful user.

Selective prosecution?

Early on in the Richneck case, Ellenson contended to prosecutors that Taylor was being “selectively prosecuted.”

“There are a lot of people smoking pot and a lot of those people have guns — and they’re not being prosecuted,” he told the Daily Press last week. “There are certainly thousands of other citizens who have violated the same law. But it’s only because this gun ended up being used to shoot a school teacher that she came to the attention of the authorities. So the U.S. attorney should have used her discretion and not even charged.”

If school officials had done their jobs and intercepted the gun before the shooting, Ellenson said, Taylor might have gotten a misdemeanor state gun charge but wouldn’t be facing a federal felony.

Before Taylor’s guilty plea, Ellenson said, he was considering subpoenaing the lists of everyone who has a concealed handgun permit in Virginia and everyone who has a medical marijuana card, then matching those up to see who is on both.

If federal prosecutors did that, he said, “They could indict every single one of those guys.”

As of last week, more than 676,000 people in Virginia hold permits allowing them to carry concealed handguns, Virginia State Police spokeswoman Corrine Geller said. But the number of medical marijuana users is more difficult to determine because such registrations are now optional, according to the Virginia Board of Pharmacy.

The U.S. Attorney’s Office declined to respond last week to Ellenson’s contention about selective prosecution.

But after Taylor pleaded guilty in June, U.S. Attorney Jessica Aber — the top federal prosecutor in the Eastern District of Virginia — didn’t apologize for the case.

“It is clear from this case that enforcement of our existing federal firearm laws is critical to ensuring public safety,” Aber said. “Federal requirements for firearm ownership are not optional and exist to protect owners, their family members, and the communities where they live. Failing to abide by those requirements when purchasing or possessing a firearm can have far-reaching consequences.”

Craig Kailimi, the Special Agent-in-Charge of the ATF’s Washington Field Division added that community safety is the utmost concern.

“I want to be clear,” he said. “Anyone that is an unlawful user of or addicted to controlled substances such as marijuana is prohibited from possessing firearms and ammunition under federal law.”

He promised his agency would work with law enforcement partners “to ensure that people who violate this condition of firearm ownership are held accountable for their actions.”

Violation of Second Amendment?

While Taylor pleaded guilty and awaits sentencing, the Federal Public Defender’s Office in Norfolk has launched a constitutional challenge in the Suffolk man’s case, contending the federal restrictions violate the Second Amendment.

Richard L. Waters Jr., 27, was hanging out in the stairwell of his Suffolk apartment complex in April 2022 when a passing police officer noticed he reeked of marijuana.

Waters and the officer happened to cross paths three days later, when Waters went to the Suffolk Police Department to get one of his guns that was seized in a separate investigation.

The officer recognized Waters from the stairwell encounter, and asked him how often he smokes weed. Waters said he has smoked about a blunt a day since graduating from high school seven years ago.

Fast forward 13 months. In May of this year, Waters — with no prior criminal record — was hit with nine federal felonies punishable by up to 75 years in prison.

That includes three separate counts of lying on a federal background check form; three counts of causing a federally licensed gun dealer to “maintain false records”; and three counts of possessing a firearm while being an unlawful weed user.

His excuse? He didn’t think what he was doing was illegal.

“Waters stated that he believed marijuana was legalized in the state of Virginia,” Special Agent Nicholas Ivone with the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives wrote in an affidavit. “He did not know it was still illegal federally, despite the clear admonition” on the form.

Waters’ lawyer, Assistant Federal Public Defender Suzanne Katchmar, filed a motion asserting that three of the nine counts must be tossed under the Second Amendment.

“Individuals in Virginia who use marijuana cannot exercise their constitutionally guaranteed right to bear arms because of the limitations in (federal law) on firearm possession,” she asserted.

She cited a landmark U.S. Supreme Court ruling from last year in which the high court tossed many New York State gun restrictions because similar limitations weren’t in place at the time the Bill of Rights was written in 1791.

The decision, New York State Rifle & Pistol Association v. Bruen, has triggered an avalanche of challenges to gun restrictions across the country, including a pending Supreme Court hearing on a law barring guns from people facing domestic violence protective orders.

Since restricting weed users’ access to firearms isn’t “consistent with the nation’s historic tradition,” Katchmar wrote, three charges against Waters must be tossed.

“There is … a lack of historical tradition to support categorically disarming individuals who use marijuana,” she wrote. The lawyer contended that is even stronger with pot’s legalization in Virginia.

In February, a federal district judge in Oklahoma ruled that barring pot users from owning guns violates the Second Amendment. In his ruling, U.S. District Judge Patrick Wyrick found that early gun laws focused largely on keeping firearms from the violent.

“The mere use of marijuana carries none of the characteristics that the Nation’s history and tradition of firearms regulation supports,” Wyrick wrote. “The use of marijuana — which can be bought legally (under state law) at more than 2,000 ordinary storefronts in Oklahoma — is not in and of itself a violent, forceful or threatening act.”

In August, a three-judge panel for the U.S. 5th Circuit Court of Appeals, based in New Orleans, ruled in a similar fashion.

But the U.S. Attorney’s Office in Norfolk strongly backs the federal restrictions.

Noting that the Second Amendment refers to the right of “the people” to keep and bear arms, Assistant U.S. Attorney Amanda Cheney cited prior court decisions to contend that “the people” isn’t everyone, but only “responsible, law-abiding citizens.”

“Unlawful drug abusers are, by definition, not ‘law-abiding’ citizens … and thus not among ‘the people’ whom the Second Amendment protects,” Cheney wrote. “A current and regular illegal drug user can hardly be termed ‘law-abiding’ or ‘responsible.’”

U.S. District Judge John A. Gibney Jr. will hear from the two sides Nov. 17.

Weed odor, no sale

At local gun shops, the current state of the law is a lot to deal with.

Dowdy said people sometimes come to Bob’s to buy a gun, but are quickly turned away if they smell of weed.

“It’s almost a daily thing where we’re smelling it on somebody,” he said.

Robert Clayton, the sales manager at Tacticool Firearms on Warwick Boulevard in Newport News, said if someone comes in smelling like marijuana, the potential sale is immediately off.

“We just let them know, ‘Hey man, you’re not going to be able to successfully pass the paperwork,’” Clayton said. “It’s just like someone walking into a gun store smelling like alcohol. It’s not going to happen … You can’t touch a firearm. We’re not going to bring anything out. We’re not going to start paperwork for you. You can come in and take a look, and that’s about it.”

Often, Clayton said, the conversation becomes a “learning moment” for customers.

Gary Crossfield, the owner of C.E. Tactical in Suffolk, said if a customer reeks of weed, he won’t sell to them — even if they come back later.

“We’re not going to stand there and let you lie on a form in front of us,” he said. But the issue, Crossfield said, is “super confusing” for customers.

To be sure, not every customer uses cannabis.

Chris Kendall, 45, of Virginia Beach, who was buying ammunition at Bob’s with his son, said he doesn’t use marijuana and won’t do so as a gun owner.

“The trade-off is not worth it,” he said. “No amount of time behind bars is worth it … If you fill out the form and it’s incorrect, it says right on the form that you’re looking at time.”

Demarcus Jackson, of Newport News, waiting for his background check to come back at Bob’s, said he quit using marijuana about three years ago.

“I wanted to better myself, with a better job,” said Jackson, 27, an assistant manager at an Arby’s restaurant in Newport News.

And Dean Melberg, a mechanic who was shopping at Winfree’s, said he’s adamantly against marijuana usage, calling its legalization “the dumbest thing I’ve ever seen in my life.”

At a Richmond gun show he recently attended, he said, “There was a big sign that said if you smell like marijuana, you can’t come in.”

Melberg, 57, said he appreciated that rule. “No. 1, I don’t like the smell, and No. 2, it’s still illegal — I don’t care if it’s legal in Virginia, it’s still illegal federally.”

Law needs clarification

Federal legalization could be on the horizon.

In October 2022, the Biden Administration announced various marijuana reform measures, including a U.S. Department of Health and Human Resources review into the possibility of “descheduling” the drug, which would essentially legalize it.

“Too many lives have been upended because of our failed approach to marijuana,” Biden said in a statement at the time. “It’s time that we right these wrongs.”

Whatever happens, local gun shop owners say it would help greatly if federal and state law were better aligned.

Though Dowdy is not a marijuana user, he’s realized in recent conversations that “many of my gun-owning friends do it.” He’s gotten nosy with them, he said, “and it’s like holy cow, man.”

“It sounds like they need to reconcile these laws so my friends don’t go to jail,” he quipped.

Crossfield, at C.E. Tactical, predicted that marijuana will ultimately be legalized federally. But in the meantime, the disparity creates headaches and a balancing act.

“We’re not judges, and we’re not lawyers, and we’re not the police,” he said.

Winfree added: “So many people are smoking marijuana in America that it’s going to be a tough thing” for gun shops.

“We’re trying to do everything correct,” he said. “We don’t want to lose our license. We don’t want to lose our livelihood. We don’t want to go to jail.”

Clayton, of Tacticool Firearms, said he “absolutely” wants the differences sorted out. Though he doesn’t use weed himself, he asserted that mixing alcohol and guns is a greater public safety threat than mixing guns and pot.

“Marijuana smokers, from my knowledge, are not prone to violence or anything,” he said. “They just kind of want to sit down, watch TV and eat food. But if you talk to law enforcement, guys drink liquor and they tend to be an issue no matter where you’re at. You don’t have bouncers outside of smoke shops. You have them outside of bars. So that kind of shows what the two substances tend to lead to.”

Peter Dujardin, 757-247-4749, pdujardin@dailypress.com