Does Arkansas's 2023 law shielding medical marijuana patients from automatic concealed-carry denial conflict with federal firearm law, and what does it actually change for applicants?

Plain-English summary

Act 757 of 2023 prevents the Arkansas State Police director from considering an applicant's or licensee's status as a medical-marijuana qualifying patient or designated caregiver when determining concealed-carry license eligibility. The Attorney General concluded that this does not conflict with federal firearm law. A registered patient or caregiver is not necessarily a marijuana user, and the Act does not require licensing someone who is federally barred from possessing firearms.

At the opinion's May 2024 date, marijuana remained a Schedule I controlled substance. The AG says 18 U.S.C. § 922(g)(3) barred unlawful users of, or people addicted to, controlled substances from possessing firearms or ammunition, including people using marijuana for medical purposes authorized by Arkansas law. Arkansas's licensing statute still requires denial when federal, state, or local law makes firearm possession unlawful. The director must use evidence other than patient or caregiver status to determine whether an applicant is an unlawful user. The opinion identifies questions on the concealed-carry application as an example.

Arkansas's concealed-carry license then qualified as an alternative to the federal NICS background check for certain firearm transfers. To keep that status, the AG says the state must verify applicants are not prohibited possessors. The opinion does not limit the qualifying permit alternative to handgun purchases.

Footnote 4 discusses a proposed move of marijuana to Schedule III. It says the opinion's analysis of Act 757 would not change, but whether a state-law medical user remained an "unlawful user" under federal law could change. At the opinion date, the proposed rescheduling was not final. The footnote discusses prescription requirements and the Federal Food, Drug, and Cosmetic Act; it does not resolve the effect of a future final rule.

What this means for you

Concealed-carry applicants

Registration as a qualifying patient or designated caregiver cannot be considered for the eligibility determination described in Act 757. The AG distinguishes status from actual use: neither status necessarily proves marijuana use. If an applicant is an unlawful user of or addicted to a controlled substance under federal law, Arkansas must still deny the license. This opinion states the legal position as of May 2024; verify current federal rules for a later application.

State Police licensing staff

Do not use qualifying-patient or caregiver status as evidence of unlawful controlled-substance use in the specified eligibility decision. The AG says the director must make that determination through other means, citing application questions about treatment commitments, drug convictions, habitual abuse, and unlawful use. The separate Arkansas eligibility rule for a person federally prohibited from possessing firearms remains in force.

Legislators and counsel

The AG recommended no changes to Act 757 for federal-law compliance. The opinion's reasoning depends on keeping patient and caregiver status separate from actual federally prohibited conduct and on enforcing the independent firearm-eligibility requirement.

Common questions

Can registration status be used as one factor among others to deny a license? The AG says Act 757 bars the director from considering patient or caregiver status when deciding eligibility. The separate clause saying status "solely" does not prove chronic or habitual abuse does not narrow that prohibition to status as the only factor.

Does a medical-marijuana registration card prove the holder is an unlawful user? No. The opinion says neither a qualifying patient nor a designated caregiver is necessarily a user.

Did the opinion discuss Schedule III rescheduling?
Yes, in footnotes 2 and 4. It described a proposal, said marijuana was still Schedule I on the opinion date, and noted that future classification could affect the federal unlawful-user question. It did not decide the result of a later final rule.

Does the state permit alternative to NICS apply only to handguns? The opinion discusses certain qualifying state permits as alternatives for firearm transfers to unlicensed people. It does not state a handgun-only limit on that federal transfer rule.

Background and statutory framework

18 U.S.C. § 922(g)(3) is the federal firearm prohibition for an unlawful user of or person addicted to a controlled substance. The opinion describes marijuana as Schedule I under 21 U.S.C. § 812 at issuance. It explains the qualifying state-permit alternative to a NICS background check under 18 U.S.C. § 922(t)(3)(A).

Act 757 amended Arkansas law to bar considering qualifying-patient or designated-caregiver status for concealed-carry eligibility, prevent a chronic-abuse finding based solely on that status, and restrict Department of Health disclosure of registry identities for the licensing background check. A.C.A. § 5-73-309(6)(A) still requires applicants not to be prohibited by law from receiving, possessing, or transporting a firearm.

Citations

• 18 U.S.C. § 922(g)(3)
• 18 U.S.C. § 922(t)(3)(A)
• 21 U.S.C. § 812
• 21 U.S.C. § 829(b)
• A.C.A. § 5-73-309(6)(A)
• A.C.A. § 5-73-309(6)(B)
• A.C.A. § 5-73-309(7)(C)
• A.C.A. § 20-56-308(b)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

TIM GRIFFIN
ATTORNEY GENERAL

Opinion No. 2023-114

May 14, 2024

The Honorable Bryan B. King
State Senator
871 CR 814
Green Forest, Arkansas 72638

Dear Senator King:
I am writing in response to your request for my opinion on Act 757 of 2023, which amended the law concerning the process for obtaining a concealed-carry handgun license. Specifically, Act 757 prohibits consideration of an applicant’s or licensee’s status as a qualifying patient or designated caregiver under the Arkansas Medical Marijuana Amendment of 2016, Arkansas Constitution, Amendment 98, § 2, in determining whether he or she is eligible to be issued a license to carry a concealed handgun.

You ask the following questions:

1. Does Act 757 of 2023 conflict with federal laws or regulations? If so, please explain
  in detail the conflicts.

   Brief answer: No. In my opinion, Act 757 does not conflict with federal laws or
                 regulations. Federal law prohibits unlawful users of a controlled
                 substance from possessing firearms, and marijuana is a controlled
                 substance. Although Act 757 prohibits the Director of the Division
                 of Arkansas State Police from considering a person’s status as a
                 medical-marijuana qualifying patient or designated caregiver under
                 Amendment 98, § 2, in determining whether the person is eligible to
                 obtain a concealed-carry license, Arkansas law still requires the
                 Director to deny a permit to individuals who are legally prohibited
                 from possessing firearms, which includes medical-marijuana users,
                 in compliance with federal law.

2. Do you recommend any changes regarding Act 757 of 2023?

   Brief answer: No, because, in my opinion, Act 757 is consistent with federal law.




                       323 CENTER STREET, SU ITE 200
                       LITTLE ROCK, ARKANSAS 72201

The Honorable Bryan B. King
State Senator
Opinion No. 2023-114
Page 2

DISCUSSION

Question 1: Does Act 757 of 2023 conflict with federal laws or regulations? If so, please explain in detail the conflicts.

1. Federal law. Federal law prohibits a person who is “an unlawful user of or addicted to
   any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802))” from shipping, transporting, possessing, or receiving firearms or ammunition.1 Because marijuana remains classified as a Schedule I controlled substance under the Controlled Substances Act,2 which means the federal government does not recognize it as having an accepted medical use,3 a person who uses marijuana—even for medical purposes authorized by state law—is prohibited from possessing a firearm under federal law.4

Before transferring a firearm to a person not federally licensed to import, manufacture, or deal in firearms, federal firearms licensees must initiate a background check through the National Instant Criminal Background Check System (NICS).5 But if an unlicensed person holds certain State permits to possess, carry, or acquire firearms, the transfer is exempt from this requirement.6 A State permit will qualify as an NICS alternative if, among other requirements, the State issues permits only after the authorized official verifies that the applicant is not legally prohibited from possessing a firearm.7

1
18 U.S.C. § 922(g)(3).
2
21 U.S.C. § 812. Attorney General Merrick Garland recently circulated a proposal to reclassify marijuana from Schedule I to Schedule III. See US Poised to Ease Restrictions on Marijuana in Historic Shift, But It’ll Remain Controlled Substance, AP News (updated Apr. 30, 2024), https://apnews.com/article/marijuana- biden-dea-criminal-justice-pot-f833a8dae6ceb31a8658a5d65832a3b8. The proposal must still be reviewed and approved by the White House Office of Management and Budget and must go through the formal rulemaking process before any final rule is published. As of the publication of this opinion, marijuana remains classified as a Schedule I controlled substance. 3 21 U.S.C. § 812(b)(1)(B) (“The drug or other substance has no currently accepted medical use in treatment in the United States.”). 4 If marijuana is reclassified as a Schedule III controlled substance, the analysis of this opinion will not change. But whether a person who is a lawful user of medical marijuana under state law remains an “unlawful user” under federal law could change. Under current federal law, Schedule III drugs may not be dispensed without a prescription, and the dispensing of such drugs must comply with the Federal Food, Drug, and Cosmetic Act (FDCA). 21 U.S.C. § 829(b). Note that even if a person’s use of medical marijuana becomes legal under federal law, the person would still be prohibited from possessing a firearm under federal law if he or she is “addicted to” marijuana. 5 18 U.S.C. § 922(t)(1).
6
18 U.S.C. § 922(t)(3)(A).
7
18 U.S.C. § 922(t)(3)(A)(ii).
The Honorable Bryan B. King
State Senator
Opinion No. 2023-114
Page 3

Arkansas’s concealed-carry license currently qualifies as an alternative.8 This means that, for our concealed-carry licensing scheme to remain an alternative to the NICS background check requirement, Arkansas must deny a concealed-carry license to anyone who unlawfully uses or is addicted to a controlled substance, including medical marijuana.

2. Arkansas law. The Arkansas Medical Marijuana Amendment of 2016 allows “[a]
   qualifying patient or designated caregiver” to use and possess certain amounts of marijuana for medical use.9 A “qualifying patient” is a person who has a diagnosed “qualifying medical condition” and is registered with the Arkansas Department of Health.10 A “designated caregiver” is a person who assists certain qualifying patients and who is registered with the Department of Health.11 By definition, neither a qualifying patient nor a designated caregiver is necessarily a user of medical marijuana.

Act 757 provides certain protections to applicants for concealed-carry licenses who are qualifying patients and designated caregivers. Specifically, the Act:

• Prohibits the Director of the Division of Arkansas State Police from considering a person’s status as a qualifying patient or designated caregiver when determining that person’s eligibility for a concealed-carry license;12

• Clarifies that an applicant “shall not be considered to chronically or habitually abuse a controlled substance based solely on the applicant’s status as a qualifying patient or designated caregiver”;13 and

• Prohibits the Department of Health from disclosing the identity of a person who has been issued a registry identification card to the Arkansas State Police for the purpose of facilitating a background check related to the issuance of a concealed- carry license.14

But Act 757 does not require the Director to issue a concealed-carry license to unlawful users of medical marijuana. Rather, Arkansas’s concealed-carry licensing statute still conditions eligibility for a concealed-carry license upon the applicant not being subject to any federal, state, or local law that makes it unlawful for him or her to receive, possess, or

8
Permanent Brady Permit Chart, BUREAU OF ALCOHOL, TOBACCO, FIREARMS & EXPLOSIVES, https://www.atf.gov/rules-and-regulations/permanent-brady-permit-chart (last updated Aug. 10, 2023). 9 Ark. Const. amend. 98, § 3(a).
10
Ark. Const. amend. 98, §§ 2(14), 5.
11
Ark. Const. amend. 98, §§ 2(6), 5.
12
A.C.A. §§ 5-73-309(6)(B), 20-56-308(c).
13
A.C.A. § 5-73-309(7)(C).
14
A.C.A. § 20-56-308(b).
The Honorable Bryan B. King
State Senator
Opinion No. 2023-114
Page 4

transport a firearm,15 which includes federal drug laws. It also conditions eligibility upon the applicant not “chronically or habitually abus[ing] a controlled substance to the extent that his or her normal faculties are impaired.”16

3. Act 757 does not conflict with federal law. At first glance, it might appear that Act 757
   conflicts with federal law, which prohibits an unlawful user of a controlled substance from possessing a firearm, but it does not. Instead, Act 757 bars the Director from using an applicant’s status as a qualifying patient or designated caregiver as evidence for determining whether the applicant is an unlawful user of a controlled substance.

The Director must use other means to make the determination that an applicant is, in fact, an unlawful user of a controlled substance. For example, Arkansas’s application for a concealed-carry license asks questions related to the use of controlled substances, although it does not ask about a person’s status as a patient or designated caregiver under Amendment 98. These questions include whether the applicant has been committed to a treatment facility for the use of controlled substances, has been convicted of a crime relating to a controlled substance, chronically or habitually abuses a controlled substance, or is an unlawful user of a controlled substance.17

In other words, the Director, in compliance with federal law, is still prohibited from issuing a concealed-carry license to someone who unlawfully uses or is addicted to a controlled substance.

Question 2: Do you recommend any changes regarding Act 757 of 2023?

Because, in my opinion, Act 757 is consistent with federal law, I do not believe changes are necessary to comply with federal law.

Senior Assistant Attorney General Kelly Summerside prepared this opinion, which I hereby approve.

Sincerely,

TIM GRIFFIN
Attorney General

15
A.C.A. § 5-73-309(6)(A).
16
A.C.A. § 5-73-309(7)(A). This is a much lower standard than that set forth in federal law, which prohibits anyone who is “an unlawful user of or addicted to any controlled substance” from possessing firearms or ammunition. 18 U.S.C. § 922(g)(3). 17 See Arkansas Department of Public Safety, Law Enforcement, Division of Arkansas State Police. Concealed Handgun Carry License Application Form. https://www.dps.arkansas.gov/wp- content/uploads/CHCL-Application-July-31-2023_Attachment5.pdf.