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Cannabis & the Gun Control Loophole

In times like these, while the topic of gun control is pervasive throughout politics and the media, it’s best to arm ourselves with knowledge so we can make informed decisions and cast our votes wisely. In this article, we’ll be examining the rocky relationship between gun rights and the recent trend of cannabis legalization in America.

ATF and the Open Letter

Regardless of one’s personal opinion of firearms, the Second Amendment to the United States Constitution protects the right of American citizens to possess and use them. In addition, a litany of supreme court rulings in recent years have reinforced the Second Amendment and clarified its meaning. And while some anti-gun groups are now pushing for Second Amendment “reform,” it remains enshrined in the Constitution that no government shall ever seek to infringe upon it. The framers of the Constitution were unambiguous in their support for firearms and the natural rights of all citizens to self-defense and resistance to oppression. They held this liberty in such high regard that they addressed it secondly in the Bill of Rights, right after the freedom of speech. It can even be argued that the right to bear arms is the most important right we have, because it ultimately protects all of our other constitutional rights from being violated. Perhaps this is one of the reasons why the founding fathers placed such great emphasis on its immutability. Here are just a few statements from our Nation’s founders:

“…the body of the people, trained to arms, is the best and most natural defense of a free country….”

-James Madison

“A free people ought not only to be armed, but disciplined…”

-George Washington

“No free man shall ever be debarred the use of arms.”

-Thomas Jefferson

Nevertheless, since the 1960’s, there have been some reasonable firearms restrictions placed on certain groups such as convicted felons, illegal aliens, subjects of restraining orders, and individuals with dangerous mental conditions. But alongside career criminals and the mentally insane, the government also forbids those who are “unlawful users of or addicted to any controlled substance” from owning firearms, as described in 18 U.S.C. § 922(g)(3).

As per usual, the devil is in the details, because while cannabis is now legal on the state level in over half of the US, it is still a controlled substance on the federal level. This means that anyone who uses it has, de facto, forfeited their Second Amendment rights. That’s right, no guns for you, stoner.

In 2011, with cannabis legalization sweeping across the nation, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) sent an open letter to all federally licensed gun sellers warning them not to transfer firearms to anyone who they have “reasonable cause to believe” uses cannabis. This was later confirmed by the 9th Circuit Court of Appeals after a Nevada woman named S. Rowan Wilson challenged the law and ultimately lost her case in 2016. The supreme court ruled that drug use (including cannabis) “raises the risk of irrational or unpredictable behavior with which gun use should not be associated.”

Cannabis users being irrational and unpredictable? You mean like the irrational decision to dip Cheetos in cream cheese? Or the unpredictable binge-watching of How It’s Made? C’mon…

A little later, in October of 2016, we saw an adjustment made to the ATF Form 4473, the form you fill out when purchasing a firearm, which clarified section 11 and left no room for misinterpretation. In the previous version, question 11.e. asked: “Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?”, to which legal cannabis users could lawfully answer “No,” because cannabis use was not unlawful in their state of residence. The updated version of the form, however, includes the specification “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.”

This places cannabis users in a catch-22 situation: answer “Yes” and they’re disqualified… answer “No” and they’ve committed perjury. The penalty for lying on a federal document is steep: up to ten years in federal prison and/or up to a $250,000 fine. But how would the ATF truly know if a gun buyer uses cannabis or not? Under the vast majority of circumstances, they wouldn’t…

Doctor’s Recs and Background Checks

In order to legally purchase a firearm, a prospective buyer must pass a background check though the National Instant Criminal Background Check System (NICS). During the check, the buyer’s criminal history, arrest warrants, immigration violations, and mental health status are reviewed, among other things. But nowhere on the Department of Justice’s website does it state that a gun buyer’s medical marijuana prescription is subject to review. This is partly to do with the fact that Americans’ health information is protected through the HIPAA Privacy Rule. But although the Feds aren’t currently accessing the health records of gun buyers, HIPAA protection alone does not necessarily bar them from doing this in the context of criminal prosecution.

The Department of Health and Human Services (HHS) changed the rules in 2016 to allow certain government entities to access health information during NICS background checks under specific circumstances related to mental health diagnoses. Therefore, it’s not unreasonable to imagine this eventually becoming a problem for cannabis patients nationwide.

For now, each state seems to be treating the cannabis/firearms issue differently. The Honolulu Police Department, for example, sent a letter to Hawaiian MMJ patients after the passing of their medical marijuana law giving them 30 days to “voluntarily surrender” any guns and ammunition… but the order was called off only two days later, following backlash from outraged citizens.

Other state agencies have similarly warned cannabis patients of the harsh penalties that could result from mixing firearms and fire buds. The Pennsylvania Department of Health originally intended to place the names of all PA MMJ patients into a database called JNET. This registry would have been accessible by local law enforcement to verify a patient’s status during a police encounter. But in addition to providing the patient with legal protection, the JNET database also would have been accessible to the feds during a NICS background check, preventing the patient from buying guns and ammo. Just like the Hawaiians, the Pennsylvanians weren’t having it, and the ensuing media outcry caused the state to rescind the policy.

Elected officials in numerous other states including Colorado, Illinois, and Montana have introduced bills to allow cannabis users to possess firearms, although all have been unsuccessful thus far.

Bottom Line for AZ Patients

So, if you’re pro-gun and pro-cannabis, should you give a false answer on ATF Form 4473? While none of us at The Cannabis Cactus are legal professionals, we can almost certainly guarantee what one might say if asked: absolutely not. There is simply no workaround here.

That being said, if your Constitutionalist spirit has compelled you to do so anyway, just know that you are not alone. If we include adult-use states, potentially millions of Americans have made the same decision, and the likelihood of them getting caught and punished is low. According to the Department of Justice, an astonishingly low number of form 4473 perjury, less than one-tenth of one percent, is actually prosecuted. So be aware, but don’t lose any sleep over it.

Simply put, the solution to this problem is to legalize on the federal level. Removing cannabis from the DEA’s list of Schedule 1 controlled substances is the only way to close this gun control loophole.

For more articles by Victor Ananda, click here.

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