Legal Marijuana? Say Goodbye to Your Gun Rights

by Dean Rieck

Many states have legalized marijuana, either for medical or recreational use. There is an ongoing debate about how this will affect health and crime, but one question most people are not asking is, "How does this affect your gun rights?"

The answer seems to be, if you use marijuana, you lose your gun rights regardless of state law.

Here's the problem: while a state can make marijuana legal, federal law continues to list marijuana as a Schedule I controlled substance. That means marijuana users can't have guns legally.

In 2011, BATFE sent a letter to U.S. gun dealers that took a firm stance on the issue:

U.S. Department of Justice

Bureau of Alcohol, Tobacco,
Firearms and Explosives

Washington DC 20226

September 21, 2011
www.atf.gov

OPEN LETTER TO ALL FEDERAL FIREARMS LICENSEES

The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has received a number of inquiries regarding the use of marijuana for medicinal purposes1 and its applicability to Federal firearms laws. The purpose of this open letter is to provide guidance on the issue and to assist you, a Federal firearms licensee, in complying with Federal firearms laws and regulations.

A number of States have passed legislation allowing under State law the use or possession of marijuana for medicinal purposes, and some of these States issue a card authorizing the holder to use or possess marijuana under State law. During a firearms transaction, a potential transferee may advise you that he or she is a user of medical marijuana, or present a medical marijuana card as identification or proof of residency.

As you know, Federal law, 18 U.S.C. § 922(g)(3), prohibits any person who is an "unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)" from shipping, transporting, receiving or possessing firearms or ammunition. Marijuana is listed in the Controlled Substances Act as a Schedule I controlled substance, and there are no exceptions in Federal law for marijuana purportedly used for medicinal purposes, even if such use is sanctioned by State law. Further, Federal law, 18 U.S.C. § 922(d)(3), makes it unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person is an unlawful user of or addicted to a controlled substance. As provided by 27 C.F.R. § 478.11, "an inference of current use may be drawn from evidence of a recent use or possession of a controlled substance or a pattern of use or possession that reasonably covers the present time."

Therefore, any person who uses or is addicted to marijuana, 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. Such persons should answer "yes" to question 11.e. on ATF Form 4473 (August 2008), Firearms Transaction Record, and you may not transfer firearms or ammunition to them. Further, if you are aware that the potential transferee is in possession of a card authorizing the possession and use of marijuana under State law, then you have "reasonable cause to believe" that the person is an unlawful user of a controlled substance. As such, you may not transfer firearms or ammunition to the person, even if the person answered "no" to question 11.e. on ATF Form 4473.

ATF is committed to assisting you in complying with Federal firearms laws. If you have any questions, please contact ATF's Firearms Industry Programs Branch at (202) 648-7190.

Arthur Herbert
Assistant Director
Enforcement Programs and Services

1The Federal government does not recognize marijuana as a medicine. The FDA has determined that marijuana has a high potential for abuse, has no currently accepted medical use in treatment in the United States, and lacks an accepted level of safety for use under medical supervision. See 66 Fed. Reg. 20052 (2001). This Open Letter will use the terms "medical use" or "for medical purposes" with the understanding that such use is not sanctioned by the federal agency charged with determining what substances are safe and effective as medicines.

So according to the BATFE, if you use marijuana, you can't legally ship, transport, receive or possess firearms or ammunition. Period. State law doesn't matter.

While this seems clear to those who pay close attention to such legal technicalities, it probably won't be clear to many casual gun owners. Most will only know that marijuana is legal in their state, and it will never occur to them that they are violating federal law.

For example, the letter above mentions question 11.e. on ATF Form 4473. This is the form you fill out when you purchase a firearm and it is used to conduct a background check. It asks:

Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?

You may think that since a state has made marijuana legal, you can answer "no." And if you're like me, and you fill out this form frequently, you may just quickly check "no" on all the legal questions without reading them. Which means you'll probably miss the warning that was added to this question in 2017:

Warning: 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.

From long experience, I know that people don't read carefully, and a certain number of gun owners are going to provide false information on this form and unknowingly become felons. This exposes you to felony charges under federal law, punishable with prison time and/or a hefty fine.

It's difficult to predict how the marijuana vs. guns issue will play out. In some states, such as Hawaii, enforcement may be strict. According to the Miami Herald, The Honolulu Police Department has been sending letters to legal users of medicinal weed, telling them to surrender their guns within 30 days. However, other states, such as Ohio, may take a softer approach. According to Ohio Board of Pharmacy spokesman Cameron McNamee, only qualified doctors will have access to the Ohio medical marijuana patient registry. Dayton Daily News is reporting that the National Instant Criminal Background Check System (NICS) won't include this data.

Regardless, with well more than half of states and the District of Columbia legalizing marijuana, there is bound to be confusion over the issue. And no matter how you may feel about it, the fact remains that state law and federal law conflict. At this time, guns and pot are like oil and water. Legally, they don't mix.

Dean Rieck is the Marketing Director of Second Call Defense and Executive Director of Buckeye Firearms Association.