Before we begin, I am going to state that this is NOT an opinion piece for or against the legalization of marijuana for medicinal or recreational use. I have my opinion on the topic and I will keep it out of this article. This article IS designed to get you thinking about the myriad of legal issues that have risen from states legalizing the medical and recreational use of marijuana, and the conflict between federal and state laws.
Who Is The ATF And Why Do They Matter?
We all probably know about the United States Department of Justice Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), and it’s regulation over nearly all things firearms related. Federal Firearms Dealers’ (FFLs’) actions are dictated by the ATF. This means every gun store from Cabelas to the small shack around the corner from the grocery store is fully licensed and regulated by a Federal Agency. If you purchased a firearm through a licensed FFL (contrary to what the media may have you believe), you had to fill out ATF form 4473 and pass a background check. Remember all the questions on the form? Pay particular attention to question 11.e:
Are you the unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?
But Don't My State Rights Matter When I Buy or Carry A Gun In My State?
Why is this important? Because although states have passed laws legalizing marijuana for medicinal and recreational use, the federal government still classifies marijuana as a schedule I drug which is defined as having no medicinal benefit. I recognize that the 4473 form does read “unlawful user,” and according to state law, you may be legally allowed to use marijuana. Unfortunately, the ATF controls firearms sales and not the states.
Federally, there is no such thing as legal marijuana use. In fact, in September of 2011, the ATF sent letters to FFL’s stating that knowingly selling a firearm to someone who is a marijuana user, even if s/he is legally able to possess marijuana in the state, would be a violation of federal law. Most FFL’s would not risk losing their license with the ATF by selling to known marijuana users.
So couldn’t one simply answer “no” to question 11.e and be done with it? Sure, if perjury is your thing. See, intentionally providing false information on a federal form like the 4473, would be considered perjury. I know you are thinking, how would the federal government or an FFL know that I have a medical marijuana card or use recreationally? If you are a casual marijuana user, you probably wouldn't pop up on an FFL’s radar. However, like I mentioned earlier, FFL’s are usually very leery about selling guns to individuals who they might think are sketchy.
Most would gladly pass up a sale if their gut is telling them something doesn't seem right with the buyer. Your pot leaf glorifying attire may be just enough to have the FFL second guess selling you that firearm. Think about this; some states have state-issued medical marijuana licenses. At the time of this article, I am not aware of any states where the list of state-issued medical marijuana cardholders names are being provided to FFL’s or being merged into the background check database, but it’s not a stretch to think that it could happen in the near future. The federal government has an arsenal of reasons to prohibit citizens from owning firearms so this could be another means of attack.
Since Legal Marijuana Use Is New Could This Possibly Blow Over?
Recently, August 2016 actually, the 9th U.S. Circuit Court of Appeals ruled that simply having a medical marijuana card issued to oneself, is enough to suspend that person's 2nd amendment right to purchase a firearm. The case began in 2011 when a gun store denied the sale of a firearm to a woman who had a state-issued medical marijuana license. The woman filed a lawsuit, and the case made its way all the way to the federal level and was most recently ruled on by the famous 9th Circuit Court of Appeals. It is not only important to know the ultimate decision of the appeal but to understand the way the court interpreted the law in this case and applied it in this instance. First, the Court ruled unanimously 3-0 against the plaintiff. Secondly, the Court ruled that it was reason for of federal regulators to assume a medical marijuana license holder is more likely to use marijuana. The Senior District Judge went on to say:
In addition, a ban on the sale of guns to marijuana and other drug users is reasonable because the use of such drugs “raises the risk of irrational or unpredictable behavior with which gun use should not be associated,”
Yes, the 9th U.S. Circuit Court of Appeals has the most overturned decisions of any other federal circuit, but changing and challenging established rulings takes time, money, stress and perseverance. Will this ruling stick, no one can say for sure. Will it be overturned or will another court rule differently based on different facts, again who knows. Until that happens, this case can be cited as precedence for other rulings.
But Concealed Carry Licenses Are Managed and Issued By States Right?
What about concealed carry licenses and marijuana use? This is another issue where state and federal law are at an impasse. There have been several state-level cases resulting in various outcomes. Currently, there are Sheriffs of some states that delay or prohibit known marijuana users from obtaining a concealed carry license. Other states have allowed it, stating that the federal laws regulating the purchase of firearms have no bearing on the citizen from obtaining a concealed carry permit. Even with these rulings, marijuana users still receive push back from the issuing authorities. As recently as 2014, Colorado voters tried to propose a bill that would stop Sheriffs from prohibiting known marijuana users from obtaining concealed carry permits. Outcome…it didn’t gain enough support to be voted upon.
And what about reciprocity agreements? If one state allows concealed handgun licenses to medical marijuana users, and another state doesn't, this could be reason for the two states to drop their reciprocity agreements.
So what does all this mean? Well, it means that there is a huge disconnect between the laws and powers of the federal government and the state government. Ironically, some of the biggest anti-gun lobbyists are also proponents of marijuana legalization. Perhaps THIS is the real reason this issue has not been addressed. Ultimately, the people suffer once again because of politics and politicians’ desire to represent their special interest donors in lieu of their constituents.
So What Do We Recommend?
Like I stated above, regardless of your opinion on the medicinal or recreational use of marijuana, there is a real issue that needs to be addressed and clarified. Right now, it is as clear as mud, and people may unknowingly be sacrificing their constitutional rights in order to get high or use medical marijuana. There are undoubtedly people who are chronically ill who could benefit from medically prescribed marijuana. However, for all the other 18-25 year olds who have joined the craze to get a medical marijuana recommendation from a doctor for their carpal tunnel syndrome as a result of playing video games, or to help them sleep, I suggest you weigh the options and look for potential, unintended consequences of getting that recommendation or state-issued medical marijuana license.
UPDATED FRIDAY NOVEMBER 18th, 2016
The DOJ just released updated information regarding how they will handle the issue of medical marijuana and firearms purchases. The DOJ posted a memo advising Federal Firearms Licensed Dealers (FFL's) that there would be changes to the ATF 4470 form. Here is a link to that memo. There are several changes however here is the change that directly addresses medical marijuana:
- Question 11.e: Added a warning statement regarding marijuana that has been legalized or decriminalized for medicinal or recreational purposes in the state where the transferee/buyer resides.
FFL's will be required to begin using the new for on January 16th, 2017.