Feds Advise Gun Dealers To Halt Sales To Possible Marijuana Users

November 15, 2016

Weapons for sale. (GABRIEL BOUYS/AFP/Getty Images)

SAN FRANCISCO (KCBS) — The trend toward legalized marijuana in the U.S. now has more than half the states allowing either recreational or medicinal use of pot.

But federal laws have not changed—and anyone who acknowledges using marijuana can’t legally buy a gun.

The Wall Street Journal reports the federal Bureau of Alcohol, Tobacco and Firearms has advised licensed gun dealers that if they have any reason to believe a would-be buyer is a marijuana user, it’s the gun dealer’s responsibility to halt the transaction.

Marijuana is still classified as a Schedule 1 controlled substance, with no approved medical use and a high potential for abuse, according to federal law. The DEA reaffirmed the classification in August.

The situation has led to some unusual political alliances. Republican Senator Lisa Murkowski of Alaska is a hunter who was surprised to find a question about marijuana use on the form she had to fill out to pick up a gift gun. And the pro-pot group NORML says people shouldn’t have to waive their Second Amendment rights to smoke marijuana.

However, the 9th Circuit Court of Appeals recently ruled that banning gun sales to medical marijuana users doesn’t violate their Second Amendment rights.

The Journal reported Sen. Murkowski wrote Attorney General Loretta Lynch earlier this year urging her to reconsider the policy.  A Justice Department spokesman told the Journal the department responded but did not reveal further details of the communication.

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Legal Marijuana Poses a Problem for Gun Buyers

Firearm purchases by drug users are prohibited by federal law; Alaska Republican is taken aback

By

Gary Fields and

Kristina Peterson

Updated Nov. 14, 2016 6:04 p.m. ET

37 COMMENTS

Sen. Lisa Murkowski’s husband and sons ordered her a new Benelli 12-gauge shotgun as a gift, but when the Alaska Republican—and enthusiastic duck hunter—went to pick it up, she was puzzled by a question on the federal background form she had to fill out.

The form asked if she used marijuana for medicinal or recreational purposes, both of which are legal in Alaska. If she answered yes, she would be unable to get the gun, because federal law prohibits anyone who uses illegal drugs from buying a firearm.

The senator doesn’t use pot, but she was taken aback by the notion that an activity that is legal in her state could block gun ownership. “I don’t like marijuana—I voted against legalization—but we passed it,” Ms. Murkowski said in an interview. “Now, you’ve got this conflict.”

The legal, recreational use of marijuana passed in four states on Tuesday with another three states passing it for medicinal use. Lance Rogers, manager of the cannabis law practice for law firm Greenspoon Marder, explains how that could influence efforts to legalize pot in other states.

The scope of that conflict just grew, as voters in eight states last week approved marijuana-related ballot initiatives. Now, 28 states and Washington D.C., allow marijuana use in some form, including eight that allow recreational use. Yet federal law still holds that anyone who uses marijuana, even medicinally, is doing so illegally and can’t buy a gun.

That is upsetting advocates for both gun owners and pot smokers, groups that don’t always find themselves on the same side of the cultural divide.

“This idea that you somehow waive your Second Amendment rights if you smoke marijuana” is wrong, said Keith Stroup, founder of NORML, which advocates marijuana legalization. “In particular, if you are using marijuana as a medicine, the idea that you have to choose between your health and the Second Amendment is offensive.”

“The Gun Control Act prohibitions are governed by the Controlled Substances Act, and marijuana remains an illegal, controlled substance under federal law,” said Justice Department spokesman Peter Carr.

Justice oversees the Bureau of Alcohol, Tobacco, Firearms and Explosives, which regulates licensed gun dealers; as well as the Federal Bureau of Investigation, which runs background checks; and the Drug Enforcement Administration, which classifies drugs.

The marijuana-gun issue is one of the stranger outcomes of an unusual conflict between state laws, which increasingly allow marijuana use, and federal law, which continues to view pot-smoking as a crime.

At issue are the applications that would-be gun buyers must fill out when they visit licensed firearms dealers. Question 11(e) on ATF Form 4473 asks whether the purchaser is an unlawful user of, or addicted to, marijuana.

Under ATF guidance distributed to gun dealers, anyone who answers affirmatively can’t buy a firearm. If a dealer has reason to believe the would-be gun purchaser is a marijuana user, the ATF says it is the dealer’s responsibility to halt the sale of a firearm or ammunition.

“There are no exceptions in federal law for marijuana purportedly used for medicinal purposes, even if such use is sanctioned by State law,” the guidance says.

The issue can be tricky, especially for those who oppose drug use but support gun rights. Perhaps for that reason, gun-rights groups have been relatively quiet on the issue. The National Rifle Association, for example, didn’t respond to requests for comment.

Officials at Gun Owners of America highlight the medicinal-marijuana issue. “GOA finds it very troubling that the Obama administration would use medical issues to ban law-abiding Americans from owning firearms,” said the group’s executive director, Erich Pratt.

The U.S. Court of Appeals for the Ninth Circuit ruled recently that banning gun sales to medical marijuana users doesn’t violate their Second Amendment rights. Marijuana is a Schedule 1 controlled substance under federal law, the court noted, meaning it has “no currently accepted medical use in treatment.” The DEA reaffirmed that status just last August.

Ms. Murkowski wrote Attorney General Loretta Lynch in March urging her to reconsider the policy. “In my judgment, the disqualification of an entire class of marijuana users acting consistent with state law from possessing any firearm merits a review of federal legal policy,” she wrote.

Mr. Carr said the Justice Department responded to the senator’s letter in October. “It is not the department’s general practice to release publicly private communications with members of Congress.”

Ms. Murkowski said she understands the concerns about gun owners using marijuana, but said similar dangers could arise regarding alcohol. The conflict will likely intensify, she added, as more states approve marijuana use.

Marijuana advocates say legal users of the drug are discriminated against in other ways as well, from child custody and banking to student loans and public housing.

“Even if you’re a progressive who doesn’t like guns or a libertarian who doesn’t like public housing, you should still be outraged by the discrimination that people who use marijuana face,” said Tom Angell, founder of Marijuana Majority, which supports legalization.

Write to Gary Fields at [email protected] and Kristina Peterson at [email protected]

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Marijuana Possession Played Key Role in Police Shooting of Keith Scott

By Daniel Politi

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Possession of marijuana played a significant role in the police killing of Keith Lamont Scott on Tuesday. Charlotte-Mecklenburg Police Department Chief Kerry Putney said during a news conference that officers were trying to serve a warrant for someone else when they spotted Scott rolling “what they believed to be a marijuana ‘blunt’" in his car. At first they allegedly didn’t think much of it, until they saw Scott had a weapon and thought, “uh oh, this is a safety issue for us and the public,” Putney said.

Putney spoke at a news conference in which he announced police would release body cam and dash cam videos of the encounter.

Along with the videos, the police also released a statement on what is known about the case. Although at first “officers did not consider Mr. Scott’s drug activity to be a priority” that changed once they saw him hold up a gun. “Because of that, the officers had probable cause to arrest him for the drug violation and to further investigate Mr. Scott being in possession of the gun.”

The police released photographs of the gun, ankle holster and joint he had on him at the time of the shooting.

“It was not lawful for [Scott] to possess a firearm. There was a crime he committed and the gun exacerbated the situation,” Putney said. The press conference marked the first time law enforcement had mentioned the detail about the marijuana.

“Due to the combination of illegal drugs and the gun Mr. Scott had in his possession, officers decided to take enforcement action for public safety concerns,” notes the statement.

Putney continued to insist that Scott “absolutely” had a gun, although he acknowledged that wouldn’t be clear from the released video. He also stood by earlier statements that the shooting was justified and officers acted lawfully. “Officers are absolutely not being charged by me at this point,” he said.

The official police statement says officers “gave clear, loud and repeated verbal commands to drop the gun” but Scott “refused to follow the officers repeated verbal commands.” And then Scott “exited the vehicle with the gun and backed away from the vehicle while continuing to ignore officers’ repeated loud verbal commands to drop the gun.” That was seen as “an imminent physical threat” and an officer opened fire. A lab analysis “revealed the presence of Mr. Scott’s DNA and his fingerprints” on the gun that was loaded, notes the police statement.

Daniel Politi has been contributing to Slate since 2004 and wrote the "Today’s Papers" column from 2006 to 2009. You can follow him on Twitter @dpoliti.

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Ninth Circuit Rules Marijuana Card Holders May Not Own Firearms

Monday, 05 September 2016

Written by  Bob Adelmann

Ninth Circuit Rules Marijuana Card Holders May Not Own Firearms

 

Last Wednesday a three-judge panel of the Ninth Circuit Court of Appeals upheld a lower court’s decision that holding a marijuana card precludes its owner from keeping and bearing arms. In the process, the panel threw out the First, Second, and Fifth Amendment rights.

Rowan Wilson, a Nevada resident who held a state-issued marijuana card but didn’t use the weed, tried to purchase a firearm from Custom Firearms and Gunsmithing in Moundhouse, Nevada. She applied for the card to show her support for the freedom of people to make their own decisions about what they might or might not imbibe or inhale. It was a political statement only. It became personal when she tried in October 2011 to purchase a firearm for personal protection.

She was confronted with Question 11e on the required federal disclosure Form 4473 issued by the ATF, which reads: “Are you an unlawful user of, or addicted to, marijuana or any depressant, narcotic drug, or any other controlled substance? Yes or No.” She showed the question to the gun shop owner, who knew that she had a card, and he denied her request to purchase the firearm. It was based not only on federal laws that still make marijuana users criminals, but on an “open letter” the ATF sent to all firearm dealers holding that mere possession of the marijuana registry card was enough to allow them to prevent a potential buyer from completing the sale. That letter stated, in part:

[Anyone] who uses or is addicted to marijuana, regardless of whether his or her state has passed legislation authorizing marijuana use for medicinal purposes — is prohibited by federal law from possessing firearms or ammunition.

Such persons should answer “yes” to question 11.e. on ATF Form 4473 … 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.

Wilson sued and her complaint was dismissed. The three-judge panel heard her appeal in July and issued its decision affirming the lower court’s ruling on August 31. The opinion, penned by Senior District Judge Jed Rakoff, included this bit of reasoning:

It may be argued that medical marijuana users are less likely to commit violent crimes, as they often suffer from debilitating illnesses, for which marijuana may be an effective palliative. But those hypotheses are not sufficient to overcome Congress’s reasonable conclusion that the use of such drugs raises the risk of irrational or unpredictable behavior with which gun use should not be associated.

The panel threw out all of Wilson’s complaints that the federal law and “open letter” violated three of the 10 rights contained in the Bill of Rights. First was her right to free expression under the First Amendment:

The panel held that any burden the Government’s anti-marijuana and anti-gun-violence efforts placed on [Wilson’s] expressive conduct was incidental…

Next to go was the Second Amendment:

Applying intermediate scrutiny, the panel … held that the fit between the challenged provisions and the Government’s substantial interest [in] violence prevention was reasonable, and therefore the [lower] court did not err by dismissing [her] Second Amendment claim.

Finally, the Fifth Amendment was overridden:

The panel held that the challenged laws and Open Letter neither violated [Wilson’s] procedural due process rights protected by the Due Process Clause of the Fifth Amendment nor violated the Equal Protection Clause as incorporated into the Fifth Amendment.

[Wilson] did not have a constitutionally protected liberty interest in [both] holding a registry card and purchasing a firearm….

Reactions to the ruling were predictably swift. Tom Angell, chairman of Marijuana Majority, was outraged:

There’s absolutely no evidence to support the notion that marijuana use leads people to be more violent, as inferred in the Court’s opinion. Regardless of how you feel about guns, no one should be discriminated against … by the government just because they happen to enjoy marijuana. That should be especially true for people who consume cannabis for medical purposes in accordance with state law and their doctors’ recommendations.

Wilson’s attorney, Chaz Rainey, was equally upset with the panel’s ruling, declaring,

We live in a world where having a medical marijuana card is enough to say you don’t get a gun, but if you’re on the no-fly list your constitutional right is still protected.

Then Rainey touched on the core issue: states’ rights, adding:

Responsible adults who use cannabis in a manner that is compliant with the laws of their states ought to receive the same legal rights and protections as other citizens.

For the moment at least, the ruling applies to only the nine states covered by the Ninth Circuit: Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. Rainey has promised to appeal the ruling either to the full circuit court or to the Supreme Court. If the appeal goes that far, Wilson’s lawsuit might give the newest member (replacing deceased Justice Scalia) of the high court a chance to rule on the matter next year. 

A graduate of an Ivy League school and a former investment advisor, Bob is a regular contributor to The New American magazine and blogs frequently at LightFromTheRight.com, primarily on economics and politics. He can be reached at [email protected].

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