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Even though marijuana became legal for adults to purchase in Montana on Jan. 1, there’s one huge caveat. Under the federal Gun Control Act, it is illegal for gun owners to possess medical or recreational marijuana, and vice versa, and the penalties for violating that law are potentially severe.

The rarely enforced law is in effect nationwide, but could be especially consequential in Montana, which has one of the highest gun possession rates in the country, with 66% of Montana adults living in a household with guns, more than twice the national average. Montanans also legalized marijuana with 56.9% of the vote, a margin matched on the 2020 ballot only by former President Donald Trump, who received the same 56.9% of the Montana vote.

Since the conflict between state and federal law can only be resolved at the federal level, Montana Free Press asked Montana’s U.S. Sens. Steve Daines and Jon Tester, U.S. Rep. Matt Rosendale, and the 2022 candidates for the state’s two congressional seats where they stand on the issue.

FEDERAL PROBLEMS REQUIRE FEDERAL SOLUTIONS

Cannabis remains a Schedule 1 Controlled Substance in the eyes of the federal Drug Enforcement Agency, even as it has been fully legalized in 18 states (and made available to medical marijuana patients in 36 states, Washington D.C., Guam, Puerto Rico and the U.S. Virgin Islands). The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) does not permit marijuana consumers to possess or purchase a firearm. The Gun Control Act doesn’t distinguish between recreational and medical marijuana use. Both remain federally prohibited. 

While the paperwork required to purchase a firearm requires applicants to self-report marijuana use, failure to do so — and subsequently getting caught in violation of the law — can result in penalties including a maximum 10-year prison sentence. 

The issue was first raised in Montana in 2011 by then-Attorney General Steve Bullock, a Democrat, after ATF published a memo declaring that medical marijuana patients could not purchase or possess firearms or ammunition. In response, Bullock wrote to then-U.S. Attorney General Eric Holder that the policy “implicates serious legal issues under the Second Amendment, and the equal protection and due process clauses of the Fifth Amendment,” adding that it also “raises serious policy and practical concerns.” The ATF policy was later upheld by the U.S. Court of Appeals. Bullock declined to comment for this story.

In recent months, however, federal lawmakers have introduced bills that could present a solution. 

In July 2021, Democratic New York Sen. Chuck Schumer unveiled the Cannabis Administration and Opportunity Act, which would federally decriminalize cannabis and remove it from the auspices of the Controlled Substances Act, facilitate expungements for nonviolent marijuana offenders, and begin the process for federal legalization.

A few months later, in November 2021, Rep. Nancy Mace, R-South Carolina, introduced the States Reform Act in the U.S. House. Mace’s bill would similarly remove cannabis from the DEA’s list of controlled substances in states that have legalized it, and decriminalize it nationwide.

ATF Public Information Officer Crystal McCoy was unable to say whether federal decriminalization or descheduling would automatically permit gun owners to purchase or possess cannabis. 

“As always, the ATF as a federal law enforcement entity can only enforce federal law. We cannot speculate at this juncture [on] changes that may come about from pending legislation,” she told MTFP via email.

Of Montana’s three federal elected officials, Daines addressed the issue most directly. While spokesperson Rachel Dumke said the senator “does not support descheduling marijuana,” she added that Daines “believes Second Amendment rights must be protected, and he’s looking further into the issue including the impacts of current federal law.”

Tester declined to specify whether he supports descheduling cannabis. His deputy communications director, Roy Loewenstein, said, “with the recent legalization of recreational marijuana in Montana, Senator Tester continues to closely monitor potential legal issues at the state and federal levels.” 

“Senator Daines does not support descheduling marijuana … the Senator believes  Second Amendment rights must be protected, and he’s looking further into the issue including the impacts of current federal law.”

Daines spokesperson Rachel Dumke

Both senators are co-sponsors of the SAFE Banking Act, which would enable cannabis businesses to access bank loans and accept credit cards as payment. Daines is a lead sponsor of the bill. “My bill would give certainty to Montana small businesses, reduce crime, create safer communities, boost local economies and create jobs,” he told MTFP in a written statement. 

Rosendale’s campaign website says “Matt has always protected our gun rights and you can count on him to fight back against any attempt by Washington bureaucrats or any politician who tries to take our guns away.”

Rosendale’s office has not responded to multiple requests for comment on decriminalization legislation and the current conflict between state legalization and federal law.  

CONGRESSIONAL CANDIDATES ON REFORM 

Of the announced candidates vying for Montana’s new western congressional seat, as well as the two Democrats seeking the nomination to run against incumbent Rosendale in the eastern district, only two — Missoula Democrat Tom Winter and Billings Democrat Penny Ronning — responded to multiple requests for comment for this story. 

Winter, a former state legislator who sponsored an unsuccessful state legalization bill in 2019, advocated removing barriers to possession of cannabis by gun owners. 

“The idea that the federal government — when your own state has decided that it is lawful to possess and consume recreational or medical marijuana — makes you ineligible to have a gun, needs to be changed,” he told MTFP. “If there’s something in this incredibly polarized time that breaks 50% approval across most if not all racial and economic lines and regions of the country, I would jump on it for sheer electoral political reasons and to be a good representative,” he said. (Disclosure: Winter is a judge in an upcoming cannabis competition arranged by the author.)

Ronning, a Billings City Council member, also expressed support for reform on the condition that it applies nationwide, not solely to states with legal marijuana. (Rep. Mace’s States Reform Act would apply only in states that have legalized marijuana for medical or recreational use).

“Cannabis needs to be dealt with and removed as a Schedule 1 drug,“ Ronning told MTFP. “I believe it should be regulated at the federal level to make this a standardized law across our country. That’s [regarding] every issue dealing with cannabis. It’s a piecemeal [approach] that I’m opposed to.”

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Max Savage Levenson

Max Savage Levenson is a Missoula-based reporter on the cannabis beat. He is the founder of Montana Cannabis Weekly, a newsletter covering the state industry. His writing on cannabis and pop culture has appeared in outlets including Pitchfork, NPR's All Songs Considered, Leafly, the San Francisco Chronicle, and Reason.