Cannabis laws and the Second Amendment are on a collision course likely to increase the legal risks for individuals who share the same passion for the core American principles of freedom and liberty.
While these industries seem mutually exclusive, it is becoming glaringly obvious that there is overlap among a wide range of demographics.
In this post, I will review the procedures for purchasing a firearm from a commercial retailer. If you are a firearms owner and a possessor of a medical marijuana card, be advised that your world may change dramatically in the coming months.
For starters, purchases at the local gun store or transfers from an online seller require the buyer to undergo a federal background check. The information from this check is gleaned from the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) Form 4473.
As part of the background check, question 11(e) asks: “Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant or 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 recreational purposes in the state where you reside.” (bold on the form). If you have a medical marijuana card, your choices are binary – lie and be approved for your purchase or tell the truth and get denied.
However, if you lie on Form 4473, you risk criminal prosecution. In fact, the U.S. Attorney recently indicted two individuals from Maine for making false statements on Form 4473 about their use of cannabis. Maine does not have a gun registry, so it is unclear how the U.S. Attorney became aware of their alleged actions.
The opaqueness of this action is extremely troubling for consumers.
In another example, last December, the Honolulu Chief of Police sent letters to 30 medical cannabis card holders instructing them to turn in their firearms. The Chief was able to cross-reference the firearms and medical marijuana registry. She later withdrew her letter but did note that any new firearms permits would not be issued to medical cannabis cardholders.
In short, your Constitutionally-protected, individual right to “keep and bear arms” is crashing abruptly into the broad spectrum of overwhelmingly popular state statutory rights granted to millions of cannabis users.
There are solutions, but they will require cooperation and courage.
The primary objective must be to remove question 11(e) from Form 4473. This task can be accomplished by the BATFE through the rule making process that is governed by the Administrative Procedures Act (APA).
Under the APA, an agency issues a proposed rule and accepts public comments that are then used to shape final regulation. The rule itself can always be challenged in the judicial system, but this method is time-consuming and expensive. However, a campaign to change the rule that combines the strength of cannabis and gun professional advocates can set this in motion. Furthermore, both segments have massive grassroots constituencies who can weigh in with the agency when they begin to accept public comments. Alternatively, Congress can – and should – introduce legislation to protect the privacy rights of gun owners and cannabis consumers.
A faster, albeit temporary, strategy is to eliminate funding needed to enforce the rule against the public. This practice occurs with some frequency when Congress passes the annual spending or Appropriations bills. The upside is that these provisions have an immediate impact and provide a quick fix. The downside is the provision is only good for one year unless renewed by Congress.
Regardless of the path, cannabis and gun communities need to come together and agree on a plan to fix this problem. The cooperation between the two industries should be relatively easy as both have professional political operatives, a solid bench of legal and regulatory experts, and perhaps most important, sizeable, vocal and passionate constituencies who have a proven track record of making and shaping policy in Washington, D.C. Bringing these groups together to develop a comprehensive plan only requires the leadership of key organizations to acknowledge the problem and agree to find a solution.
The grassroots effort will require tremendous courage to stand up and pressure the BATFE with public comments pushing for the removal of 11(e). Both communities tend to guard their privacy zealously and may be reticent to make themselves known to a government agency. Contrary to popular belief, a grassroots movement will always be exponentially more effective than a group of paid political operatives.
If we don’t act, this issue will get worse. A strategy of “duck, cover and pray they go after someone else” is not effective nor does it embody the frontiersman level of courage found in both the cannabis and gun communities.
The bottom line: stand up and be counted so that citizens can exercise their fundamental, God-given, rights.
Andrew Shore is a lobbyist for the New Federalism Fund. He is a partner at Jochum Shore & Trossevin, PC and a former Chief of Staff of the House Republican Conference. The views expressed in this publication are his own.