Monday, March 27, 2023
Students in my Marijuana Law, Policy & Reform seminar often focus on cutting-edge issues in their class presentations on the research topics of their choice. The second presentation slated for this week could not possibly be more cutting edge, as my student will be discussing gun possession and marijuana use. Here is how she has described her topic along with background readings she has provided for classmates (and the rest of us):
Although individual states have not necessarily legislated that possessing a gun is unlawful for state compliant marijuana users, cannabis’s federal illegality seems to produce this result. The process for obtaining a gun – regardless of what state the individual resides in – requires the individual to fill out the Federal Bureau of Alcohol, Tobacco, and Firearms’ Form 4473. Form 4473 question 21g states:
"Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance? Warning: The use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medicinal or recreation purposes in the state where you reside."
Consequently, individuals that are fully in compliance with the marijuana laws in their home state are being stripped of their Second Amendment right, regardless of if the plant is being used for medicinal or adult use purposes. Therefore, marijuana users who wish to possess a gun have three options: stop using marijuana entirely, stop using state compliant marijuana and instead obtain it from an illicit source, or lie. Although ATF agents and prosecutors report that due to limited resources, they are not inclined to prioritize the nonviolent crime of lying on a form over more serious charges, lying on the form and obtaining a gun while being a marijuana user remains a federal felony offense.
In the wake of the 2022 Bruen holding, litigation on this matter seems to (so far) sway in favor of gun rights activists. But there remain many unanswered questions in this area. The implications of either a legitimization of state-legal marijuana use on the federal level (while the plant remains on Schedule I), or of an acknowledgement that the gun control/background check process can be changed, could be massive.
Links to Background Reading:
From the Washington Post, "Lying to ATF on gun-purchase form yields few prosecutions, data shows"
From the US Attorney's Office in the Western District of Oklahoma, "Federal Prosecutors Aggressively Pursuing Those Who Lie in Connection With Firearm Transactions"
From the Reason Foundation, "Medical Marijuana Patients Are Being Denied Gun Rights"
From US Congressman Alex Mooney, "There Are Two Sides Of The Fence, Use Marijuana And Give Up Gun Ownership Or Give Up Marijuana And Be A Gun Owner."