When Illinois’ recreational cannabis law goes into effect on Jan. 1, Illinois State Police officials said the agency won’t revoke Firearm Owners' Identification cards based solely on recreational use, but questions remain.
A defense attorney who focuses on Second Amendment cases said the matter remains a question mark.
Here’s the conundrum: Recreational cannabis is legal in Illinois. Illinois also is one of the only states that require residents to obtain an identification card to own a firearm. The governmental entity charged with running that program and its daily background checks will also have knowledge of some people who are using cannabis, a no-no for gun ownership in the eyes of the federal government. The marijuana legalization law, however, does not allow retailers to keep or share consumers' personal information.
While possessing less than 30 grams of cannabis flower has not been a crime in Illinois since 2016, it is still a Schedule I drug in the eyes of the federal government and gun buyers are specifically asked if they use cannabis.
“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,” the Firearms Transaction Record states after it asks if the applicant is an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance.
A “yes” answer to that question means a denial of the firearm sale. Illinois recreational pot law, however, specifically states that anyone purchasing marijuana from a licensed retailer "shall not be considered an unlawful user or addicted to narcotics."
The Illinois State Police will “not revoke Firearm Owners' Identification cards based solely on a person’s legal use of adult-use cannabis,” the agency said in a statement Dec. 23.
“Pursuant to both State and Federal law, a person who is addicted to or a habitual user of narcotics is not permitted to possess or use firearms," the statement said. "Accordingly, the ISP will revoke FOID cards where it is demonstrated that an individual is addicted to or is a habitual user of cannabis. The ISP would also revoke or deny the FOID cards of those who violate certain provisions of the Cannabis Regulation and Tax Act.”
The Bureau of Alcohol Tobacco and Firearms made clear in 2011 that a firearms dealer must not sell a gun or ammunition to a medical cannabis cardholder.
This conflict of what information state police have creates an interesting intersection between federal and state statutes.
“Once that information gets in the hands of the Illinois State Police, then it could be their policy to automatically take someone’s FOID card away based on the argument that they are unlawful users of marijuana,” said Michael Donahue, a defense attorney in Kankakee.
One client Donahue represents was arrested on a driving under the influence charge after using cannabis and was informed by ISP that his FOID card had been revoked due to the charge, the attorney said.
Some sources say cannabis users would have to buy a firearm through a private sale that doesn’t require a background check, but Illinois closed what has been referred to as “the gun show loophole” in 2013.
An inquiry with the Department of Justice was not immediately returned.