33 states had not submitted any records even though the law bars anyone with multiple arrests for drug use or possession within the past five years, or those convicted for use or possession within the last year, including marijuana. Yet the report found states with lengthy registries of medical pot smokers did not provide that information to the NICS system.
First, a little background for people who have never purchased a firearm. Anyone wanting to buy a gun has to fill out ATF form 4473. The completed form is submitted to the FBI’s National Instant Criminal Background Check System (NICS) to see if the applicant is prohibited from buying firearms. The store can’t sell a gun to that person until the FBI responds with an approval to proceed.
Section 11 of ATF form 4473 asks twelve questions related to eligibility to purchase a firearm. Lying on the form is a felony punishable by up to five years in prison. ATF form 4473 specifically asks about marijuana use in section 11.e.:
Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic, or any controlled substance?
The question is, if state law allows a person to use marijuana for medical reasons or recreational reasons, but federal law doesn’t, does that make the marijuana use “unlawful”?
According to a September 21, 2011 opinion letter from the ATF, the answer is “yes” – medical marijuana users are unlawful users according to federal law regardless of what state law says (emphasis mine):
Marijuana is listed in the Controlled Substances Act as a Schedule 1 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.
Sad to say, the ATF is almost certainly correct. The Department of Justice has prosecuted any number of medical marijuana dispensaries that are legal under the laws of their respective states. The 2011 letter was written before voters in Colorado and Washington states approved legal recreational marijuana use, but it’s safe to assume the same rules would apply.
ATF’s letter also states that it’s illegal to knowingly transfer guns to medical marijuana users:
Such personas should answer “yest” to question 11.e. on ATF Form 4472 (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 medical 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.
Is the only reason medical marijuana users aren’t being rejected by NICS is that the states haven’t submitted their lists of medical marijuana users to the FBI? With the attention on guns in the national debate, there’s every reason to believe that information will begin flowing.
It’s too bad medical marijuana legalization threw medical privacy out the window. Forget about guns – if the feds have a list of medical marijuana users, they have a list of people they can charge with possession of a controlled substance. The U.S. needs to legalize or decriminalize marijuana at the federal level to solve this legal Catch-22 between state and federal government.