Federal prohibition of cannabis affects patients hoping to obtain firearms.
Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?
Check yes. Check no.
Warning: The use or possession of marijuana remains unlawful under Federal law regardless of whether it has been decriminalized for medicinal or recreational purposes in the state where you reside.
The choice is simple. Answer “yes” to question 11.e on the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) Form 4473 and you might as well head on out to the car; you are not legally buying a gun today.
But let us just suppose that after an intense internal debate, you hold your breath and check that “no” box to the infamous question. After passing that background check, you pay the clerk and leave the store, sweatily clutching your new piece.
Congratulations. In addition to practicing your Second Amendment rights, you have now perjured yourself and could potentially face federal felony charges by answering a question designed specifically to ensnare medical cannabis cardholders.
Of the more than 33 states where medical cannabis has been legalized, most have grappled with the issue of guns and ganja in one of two ways. States like Oklahoma are directly challenging ATF’s authority, drafting legislation to shield its citizens’ rights to both under the canopy of states’ rights while other states, like Hawaii, are falling in line and taking the ATF prohibition literally, going so far as to send letters to at least 30 medical card holders demanding they surrender their firearms to Honolulu police.
Regardless of how a state deals with it, this raging debate has caused several high-profile pundits to weigh in, espousing viewpoints some folks might find downright surprising.
“This classification has caused real problems for gun owners in states that have legalized its use for medical marijuana prescriptions,” wrote conservative columnist and former president of National Rifle Association David A. Keene in a Washington Post editorial last year. “The refusal of the federal government to accede to the judgment of the states on the issue has created problems for tens or even hundreds of thousands of gun owners who are being forced to either trade their Second Amendment rights for a chance to live pain-free or risk prosecution and imprisonment.”
While the move toward state legalization has brought this issue to the forefront in the past two decades, the relationship between cannabis and firearms has been historically tenuous, but things went sideways when President Lyndon Johnson signed the Gun Control Act of 1968. The shooting deaths of the Rev. Martin Luther King, Jr. along with John and Robert Kennedy and a melting pot of escalating crime, civil unrest and urban rioting created a fearful climate allowing for the relatively easy passage of this new gun control legislation in the turbulence of the 1960s. The act greatly strengthened federal oversight on firearms, imposing stricter licensing and regulation on the industry, establishing new categories of offenses and placing restrictions on the sale of firearms to felons and other prohibited persons, including “unlawful users of … any controlled substance.”
Sound familiar? The act was the basis for the verbiage utilized in a 2011 open letter from ATF to all federal firearms licensees penned as the bureau’s official response to the tidal wave of states passing medical cannabis. This strongly worded letter accompanied the rollout of the changes to Form 4473, including introduction of question 11.e.
“Any person who uses or is addicted to marijuana,” the letter stated, “regardless of whether his or her State has passed legislation authorizing marijuana use for medicinal purposes, is an unlawful user of or addicted to a controlled substance and is prohibited by Federal law from possessing firearms or ammunition.”
The memo further advised the seller that even if someone answers “no” to the medicinal cardholder question, they were authorized to not sell them a weapon if they felt they had “reasonable cause to believe” they are an “unlawful user.”
The strong language of the letter puts local sellers in a tough position, not giving them much choice but to stick to their guns.
“According to the federal form question 11, if you use marijuana, even if you have a card, it’s still illegal for us to sell you a weapon,” said Connor Ernst of H&H Shooting Sports. “Even if we suspect you use, we can’t sell you a weapon.”
While this memo and the changes to the form might have barely resonated with Oklahomans when it was drafted in 2011, passage of State Question 788 caused many folks to take umbrage. Within days, Oklahoma State Bureau of Investigation (OSBI) issued an official press release staking out its position.
“The proposed language of State Question 788 appears to be in direct conflict with federal law regarding the possession and purchase of handguns, and thereby in conflict with Oklahoma Self-Defense Act licensing laws, rules, etc.,” the release said.
Later that summer, OSBI special agent Steve Tanner reiterated this argument in an article published in The Claremore Daily Progress.
“We’re required to enforce the state law and we’re required to enforce the federal law,” Tanner said. “We don’t have any choice but to enforce the existing rules.”
Seeking to clarify this position and offer some protection to Oklahomans who choose to carry both a medical card and a firearm, the state Legislature took up the cause, rolling out House Bill 2612, or the “unity bill,” earlier this year. In addition to helping codify terminology and standardize practices for the medical cannabis industry, the bill directly addresses the firearms issue:
“A medical marijuana patient or caregiver licensee shall not be denied the right to own, purchase or possess a firearm, ammunition, or firearm accessories based solely on his or her status as a medical marijuana patient or caregiver licensee. No state or local agency, municipal or county governing authority shall restrict, revoke, suspend or otherwise infringe upon the right of a person to own, purchase or possess a firearm, ammunition, or firearm accessories or any related firearms license or certification based solely on their status as a medical marijuana patient or caregiver licensee.”
Gov. Kevin Stitt signed this bill into law March 14.
Admittedly, this bill offers some relief to Oklahoma’s medical cardholders, but there is still federal prohibition with which to contend. Rep. Alex Mooney, R-West Virginia, took aim at this issue April 3 with House Resolution 2071, aka the “Second Amendment Protection Act.”
Currently in committee, Mooney’s bill would “amend title 18, United States Code, with respect to the sale, purchase, shipment, receipt, or possession of a firearm or ammunition by a user of medical marijuana.”
If successful, HR2071 would provide an exemption for medical cannabis users, stating that the “individual shall not be treated as an unlawful user of or addicted to any controlled substance based on the individual using marihuana for a medical purpose in accordance with State law.”
While this offers a ray of hope for the future, question 11.e still hovers.