Can I buy a gun with a prior drug conviction on my record?
In some situations, the answer is an easy no, but, in other situations, there does not seem to be a definitive yes or no answer to this question. There are both Pennsylvania state laws that prohibit a person from possessing or buying a gun, and there are Federal laws that prohibit gun possession.
In Pennsylvania, 18 Pa.C.S. 6105(c)(2) prohibits a person with a drug conviction under Pennsylvania, Federal, or another state law IF the maximum sentence for the conviction was more than years. Most first offense misdemeanor drug possession charges in Pennsylvania, like Possession of a Small Amount of Marijuana under 35 P.S. 780-113(a)(31) and Possession of a Controlled Substance under 35 P.S. 780-113(a)(16), are not punishable by more than two years and thereby do not trigger the gun prohibition.
However, drug delivery, possession with intent to deliver under 35 P.S. 780-113(a)(30) are punishable by more than two years and would trigger the state ban. Such convictions would also trigger the Federal ban under 18 U.S.C. 922(g), which prohibits are felony from possessing or attempting to purchase a firearm.
State Misdemeanor Drug Conviction and Federal Firearm Law
The tricky situation occurs when a person has a misdemeanor drug conviction that is two years or less. Federal law prohibits a person “who is an unlawful user of or addicted to any controlled substance” from possessing or attempting to purchase a firearm. (See 18 U.S.C. 922(g)(3)). When a person tries to buy a gun, they normally must complete an ATF Form 4473, and question 11(e) asks the applicant if he or she is an “unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance.”
The words “user” and “addicted” appear to question an applicant about current use and addiction. It must be emphasized that the law prohibits the unlawful user of marijuana from possessing or purchasing a gun, and this includes people with medical marijuana cards in Pennsylvania.
Many people with drug convictions have stopped using drugs and are not currently addicted. If the person stopped using drugs, then the person can honestly answer the question that he or she is not a “user” and is not “addicted” to drugs anymore. Such a person may still be denied the purchase of a firearm. And the police may contact the person as part of an investigation for lying on the gun application. Just because the person is denied the purchase of a gun and just because the police may conduct an investigation does NOT mean that the denial was lawful. Because things sometimes go wrong, there is an appeal process for when a person is prevented from buying a gun. There are not many Pennsylvania cases that review the current use issue, but one case that is NON-PRECEDNTIAL can be reviewed here.