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 amended Arkansas's concealed-handgun licensing law in three ways:
- The Director of the Arkansas State Police cannot use a person's status as a medical marijuana qualifying patient or designated caregiver as a basis for denying a concealed-carry license (CHCL).
- An applicant cannot be deemed to "chronically or habitually abuse" a controlled substance based solely on patient or caregiver status.
- The Department of Health is barred from disclosing identities of registry cardholders to State Police for CHCL background checks.
Senator King asked whether this conflicts with federal firearm law. The AG concluded no, with a careful explanation.
Federal law (18 U.S.C. § 922(g)(3)) prohibits anyone who is an unlawful user of, or addicted to, a controlled substance from possessing firearms. Marijuana remains classified as Schedule I under the Controlled Substances Act, so state-authorized medical marijuana use is still federally "unlawful use." Arkansas's CHCL is currently a Brady alternative under 18 U.S.C. § 922(t)(3)(A), meaning a CHCL holder does not have to go through a NICS background check at federal firearms dealers. To keep that status, Arkansas must deny licenses to anyone federally prohibited from possessing firearms.
Act 757 does not change that bottom line. What it changes is the evidentiary path: the State Police cannot use patient/caregiver registration as the sole evidence of unlawful drug use. The Director must rely on other evidence, like the applicant's own statements on the application about controlled substance use, prior commitments, prior convictions, or chronic abuse.
The AG saw no need for further amendments to Act 757.
What this means for you
Concealed-carry applicants who are medical marijuana patients
Act 757 does not give you a free pass. Federal law still bars firearm possession by unlawful users of controlled substances, and marijuana remains federally controlled even when state-licensed. If you are a medical marijuana user and you actually use marijuana, you remain federally prohibited from possessing firearms. A CHCL issued in spite of that prohibition is not protection against federal prosecution.
What Act 757 changes is the application process. The State Police cannot pull your registry card, see that you are listed, and deny you on that basis alone. They have to assess whether you actually use unlawfully. The application asks about treatment commitments, controlled-substance convictions, chronic or habitual abuse, and unlawful use. Be aware that lying on a federal Form 4473 firearm transaction record about being an unlawful user of a controlled substance is a federal crime, regardless of state CHCL status.
If you hold a registry card but do not actually use, the AG's reasoning suggests you would not be a federal-law unlawful user. The card by itself is a registration, not an admission of use.
Designated caregivers (not patients)
The same logic applies and is even cleaner: caregivers register to assist patients but are not necessarily users themselves. By definition, a caregiver "is not necessarily a user of medical marijuana." Act 757 protects you from automatic CHCL denial based on caregiver status alone. If you do not use the substance unlawfully, the federal § 922(g)(3) bar does not apply.
State Police background investigators
The investigative path under Act 757 has to skip patient and caregiver registry status and instead assess the application's actual disclosures and any independent evidence. Section 5-73-309(7)(A) still bars CHCL for anyone who chronically or habitually abuses a controlled substance to the extent of impairing normal faculties. Section 5-73-309(6)(A) still bars CHCL for anyone subject to federal, state, or local laws making firearm possession unlawful, which captures the federal § 922(g)(3) prohibition.
If you confirm an applicant is a federally unlawful user of any controlled substance (including state-legal marijuana), deny the CHCL. The state's Brady-alternative status depends on continued strict denial of federally prohibited persons.
Firearms attorneys
The opinion does not resolve whether Bruen-era Second Amendment doctrine alters § 922(g)(3) as applied to non-violent marijuana users. Several federal circuit decisions have addressed this, and the law remains in flux. The opinion takes federal law as it currently is. As of the issue date, marijuana remained Schedule I; rescheduling to Schedule III was proposed but not finalized.
State legislators considering further amendments
The AG saw no recommended changes to Act 757. The current statute threads the needle by removing patient/caregiver status as the single basis for denial while preserving full denial for actual federal prohibition.
Common questions
If Act 757 stops the State Police from using my registry status, how would they ever know I am an unlawful drug user?
Through the application itself. Arkansas's CHCL application asks whether the applicant has been committed for treatment of controlled substances, has been convicted of a controlled substance crime, chronically abuses controlled substances, or is an unlawful user of any controlled substance. Lying on the application is not protected by Act 757. The Department of Health is barred from disclosing registry status to State Police, but the State Police can still ask the applicant directly.
What about marijuana rescheduling?
The opinion was issued in May 2024. At that time, the U.S. Attorney General had circulated a proposal to move marijuana from Schedule I to Schedule III, but the rule had not been finalized. The opinion notes that even if marijuana becomes Schedule III, lawful state medical use would not necessarily render the user a "lawful user" under federal law, because Schedule III drugs require a prescription and compliance with the Federal Food, Drug, and Cosmetic Act. The opinion's analysis assumes Schedule I status. Verify current federal scheduling before relying on this conclusion.
Why is Arkansas's CHCL a Brady alternative, and why does that matter?
Under 18 U.S.C. § 922(t)(3)(A), if a state issues firearm permits only after verifying the holder is not federally prohibited, the permit substitutes for a NICS background check at a federal firearms dealer. This is convenient for permit holders but only works if the state's verification is rigorous. If Arkansas started issuing CHCLs to federally prohibited persons (including marijuana users), the federal government could remove Arkansas from the alternative list, requiring NICS checks for all firearm transfers in the state.
Does Act 757 affect rifle and shotgun purchases?
The opinion is about concealed-handgun licenses. Long-gun purchases at federally licensed dealers go through NICS regardless of CHCL status, and Form 4473 asks about unlawful drug use. Marijuana status, including state-legal medical use, makes the answer "yes," and answering "no" is a federal crime.
Can I apply for a CHCL in Arkansas as a medical marijuana cardholder who does not actually use marijuana?
Based on the AG's reasoning, status as a registered patient or caregiver alone is not the basis for denial under Act 757. If you are not actually a user, the federal § 922(g)(3) bar does not apply. The State Police's investigation will look at actual conduct.
Background and statutory framework
Federal firearms law. 18 U.S.C. § 922(g)(3) prohibits firearm possession by any 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))." Marijuana is classified as Schedule I under the Controlled Substances Act, 21 U.S.C. § 812, which the federal government interprets as having "no currently accepted medical use." State-authorized medical marijuana use is therefore "unlawful use" under federal law.
Brady alternative permit status. 18 U.S.C. § 922(t)(1) requires a NICS check before a federal firearms licensee transfers a firearm. Subsection (t)(3)(A) exempts transfers to qualified state-permit holders if the state issues permits only after verifying eligibility, including verification that the holder is not federally prohibited. Arkansas's CHCL currently qualifies (per ATF Permanent Brady Permit Chart).
Arkansas concealed-carry eligibility. A.C.A. § 5-73-309(6)(A) requires the applicant to not be subject to any federal, state, or local law that makes it unlawful to receive, possess, or transport a firearm. A.C.A. § 5-73-309(7)(A) requires the applicant not to chronically or habitually abuse a controlled substance to the extent that normal faculties are impaired (a lower standard than § 922(g)(3)).
Arkansas Medical Marijuana Amendment of 2016. Ark. Const. amend. 98, § 3(a), allows qualifying patients and designated caregivers to use and possess limited amounts of marijuana for medical purposes. Sections 2 and 5 define and govern registration of qualifying patients and designated caregivers.
Act 757 of 2023's three changes. A.C.A. § 5-73-309(6)(B) and § 20-56-308(c) bar use of patient/caregiver status in eligibility determinations. A.C.A. § 5-73-309(7)(C) clarifies that an applicant is not "chronically or habitually abus[ing]" based solely on registry status. A.C.A. § 20-56-308(b) bars Health Department disclosure of registry identity to State Police for CHCL background checks.
Citations
- Act 757 of 2023 (medical marijuana protections in CHCL law)
- A.C.A. § 5-73-309(6)(A), (6)(B), (7)(A), (7)(C) (CHCL eligibility)
- A.C.A. § 20-56-308(b), (c) (Department of Health disclosure restrictions)
- Ark. Const. amend. 98, §§ 2, 3(a), 5 (Arkansas Medical Marijuana Amendment of 2016)
- 18 U.S.C. § 922(g)(3) (federal prohibition on unlawful drug users possessing firearms)
- 18 U.S.C. § 922(t)(1), (t)(3)(A) (NICS check and state-permit alternative)
- 21 U.S.C. § 802, § 812 (Controlled Substances Act schedules)
- 21 U.S.C. § 829(b) (Schedule III prescription requirement)
- BUREAU OF ALCOHOL, TOBACCO, FIREARMS & EXPLOSIVES, Permanent Brady Permit Chart
Source
Original opinion text
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:
-
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. -
Do you recommend any changes regarding Act 757 of 2023?
Brief answer: No, because, in my opinion, Act 757 is consistent with federal law.
DISCUSSION
Question 1: Does Act 757 of 2023 conflict with federal laws or regulations? If so, please explain in detail the conflicts.
- 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. Because marijuana remains classified as a Schedule I controlled substance under the Controlled Substances Act, which means the federal government does not recognize it as having an accepted medical use, a person who uses marijuana, even for medical purposes authorized by state law, is prohibited from possessing a firearm under federal law.
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). But if an unlicensed person holds certain State permits to possess, carry, or acquire firearms, the transfer is exempt from this requirement. 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.
Arkansas's concealed-carry license currently qualifies as an alternative. 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.
- 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. A "qualifying patient" is a person who has a diagnosed "qualifying medical condition" and is registered with the Arkansas Department of Health. A "designated caregiver" is a person who assists certain qualifying patients and who is registered with the Department of Health. 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;
- 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"; 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.
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 transport a firearm, 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."
- 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.
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