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The ATF takes a pot shot at marijuana users

The Maryland Medical Cannabis Commission website reads: “Important Message: Medical cannabis is currently not available in the State of Maryland.” The website states it expects availability of medical cannabis by the end of the fall “depending on industry progress.” It should be somewhat safe to assume that sometime in the next year, medical cannabis will be available in Maryland for legal purchase by patients whose medical doctors give a prescription.

Acquisition of a prescription for medical cannabis creates a potentially felonious conflict with the right to buy a firearm. This is because the federal law regulating the purchase of firearms provide that no person “who is an unlawful user of any controlled substance may possess or receive a firearm.” It is equally unlawful for a seller or transferer to provide a firearm to someone known to be an unlawful user of any controlled substance.

Under the federal law, cannabis, medical or not, is a controlled substance. While numerous states have legalized marijuana for medical use, and some have done so for recreational use, those permissive state laws did nothing to decriminalize the federal laws, even if the state did exempt the possessor of a medical prescription from prosecution for most marijuana-related crimes.

In 2008, the Supreme Court in D.C. v. Heller held, after nearly 70 years of the lower courts’ misconstruing the right to bear arms, the Second Amendment was created to reinforce an inalienable individual right to bear arms. Heller hardly left that right unrestricted, and without providing much detail, held the right to bear arms, like the First Amendment, is not unlimited and government can impose conditions on that right. Felons, fugitives from justice, illegal aliens, citizens who have renounced their citizenship and the mentally ill could be restricted, for exmaple; guns can be restricted from public assemblies and government buildings; and certain type of guns, such as machine guns, do not enjoy Second Amendment protection.

In 2016, there were approximately 10 million new guns made in the United States. Another 2.5 million guns were imported into the United States. There were already an estimated 300 million guns in the United States, some of them changing hands by gift or sale. Some firearms transfers bypass federal firearms licensees who are required to obtain from the buyer, or donee of a gift, a federal Form 4473, signed under penalties of perjury. Those buyers and sellers who bypass the federal firearms licensee and deal between themselves are still required to comply with the federal laws that prohibits an unlawful user of a controlled substance from acquiring, receiving, transporting or possessing a gun.

If the transfer occurs through a federal firearms licensee, such a as retail gun store, the dealer must obtain the Form 4473 from the buyer. And in Maryland, where a handgun is a regulated firearm, it must be transferred through a licensee or the Maryland State Police. The Form 4473 will be required.

Answering the question

Question 11(e) on Form 4473 requires the buyer to answer whether the buyer or transferee is “an unlawful user of, or addicted to, marijuana… or any other controlled substance.” While a buyer with a medical marijuana prescription might believe he or she is not an unlawful user because marijuana is lawful under state law, that mistaken belief could land the buyer in jail. At the very least, legal state use of marijuana will bar legal possession of a firearm under federal law.

Because marijuana use anywhere and everywhere is unlawful under federal law, the federal government, through the Alcohol, Tobacco and Firearms Division of the U.S. Treasury, thoughtfully reminded its firearms licensees by letter that it considers anyone who uses marijuana to be unlawful user of a controlled substance no matter the state law.

The 9th U.S. Circuit of Appeals, in Wilson v. Lynch, held a person who obtained a legal prescription for a medical marijuana card in Nevada was prohibited from buying a firearm. It did not even matter the applicant did not actually use marijuana – possession of the prescription was enough to disqualify the holder from buying a gun. (Arguably, the court left open the question of whether the applicant could possess a gun already owned, and whether the applicant could turn in her card and then buy a gun.)

Under these circumstances, how should an applicant with a Maryland medical marijuana prescription who applies to buy a firearm answer question 11(e) on Form 4473? The more sophisticated  or knowledgeable buyer probably will understand if he or she holds a medical marijuana prescription and answers  “yes,” he or she will be disqualified from buying a firearm.

But should a buyer with a medical marijuana prescription be undecided as to how to answer this question, the government has provided the answer with new information at the tail end of question 11(e) in bold letters. “Warning: the use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized…in the state where you reside.” 

Jim Astrachan is a principal in Astrachan Gunst Thomas PC in Baltimore. He is teaching “Gun Control and the Second Amendment” at the University of Baltimore School of Law and Washington College this fall. Astrachan also serves as chairman of The Daily Record’s Editorial Advisory Board; the opinions expressed above are his own.