The Arkansas Lawyer Spring 2017

Page 26

Arkansas Medical Marijuana Amendment of 2016

Guns or Ganja: Pick One and Only One By Michael K. Goswami

Introduction to a Conflict of Supremacy Residents of the Natural State own firearms at a rate higher than every state with the exception of Alaska.1 With the recent passage of the Arkansas Medical Marijuana Amendment of 2016 (the “Marijuana Amendment”), Arkansas also recently joined the growing number of states that have legalized marijuana for medicinal purposes.2 Many Arkansans, as well as out-of-state residents, are now excited about the development of new medicinal and business opportunities generated by the passing of the Marijuana Amendment. Alongside these new prospects, however, may linger a multitude of associated problems for gun-loving Arkansans.

Michael Goswami is an attorney and MBA at Rose Law Firm in Little Rock, Arkansas, where his practice focuses on commercial transactions and regulated industries.


The Arkansas Lawyer

Liberties Granted by the Second Amendment are Limited The intersection of federal and state law creates a scenario whereby being the holder of a medical marijuana card might place a person into an unanticipated, precarious scenario. The Second Amendment community lauded the 2008 Supreme Court decision in District of Columbia v. Heller, a decision brokered by the late-Justice Antonin Scalia, which cemented the individual’s right to possess a firearm for purposes unconnected with militia service.3 However, the Heller Court noted that the Second Amendment does not create an unbridled right to bear arms, and the decision was not intended to “cast doubt on longstanding prohibitions” on firearm use.4 A 2016 Ninth Circuit decision emphasizes that holders of a medical marijuana card are not exempt from the federal prohibition on firearm possession by marijuana users.5 Additionally, a 2014 opinion issued by the Fourth Circuit highlights that the personal right of selfdefense, a liberty solidified by Heller, does not outweigh the government’s interest in preventing drug-related crime, including the prohibition on the possession of firearms by marijuana users.6 Furthermore, published federal guidance and updated firearm transfer application forms demonstrate that the government desires to enforce the mandate that marijuana users should not possess firearms. As such, no matter the amount of protection afforded under the Second Amendment, it appears that the lawful use of marijuana under state law completely eviscerates one’s right to constitutionally bear arms.