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Marijuana And Firearms

Marijuana And Firearms

Florida – Medical Marijuana And Your Ability To Posses Firearms

This November (2016), Floridians will vote on a constitutional amendment allowing persons who have a number of medical conditions have access to Medical Marijuana. If the proposal passes, Floridians who have a “Debilitating Medical Condition” would have access to cannabis prescribed by a physician. As many other states have done, Florida regulatory agencies would regulate the cultivation and distribution of cannabis for medical purposes.

Even if the Amendment fails, Florida is likely on track to approve the use of medical Marijuana at some point in the future. The measure failed in 2014, but by a very narrow margin.

How does a change in Florida Medical Marijuana law affect persons who posses or may want to purchase firearms?

Any new legislation would require Florida, like other states, to issue an identification card indicating a person can lawfully use marijuana and derivatives for a medically related purpose as prescribed by a qualified physician. Qualified persons would not be prosecuted under Florida criminal law, as long as the person complied with all other Florida Statues.

Although the law may permit the lawful use of marijuana for medical purposes, the possession of firearms by users is another matter. With respect to the Federal law, a person who is an “unlawful user” of any controlled substance is prohibited from receiving or possessing a firearm (18 U.S.C. § 922(g)(3)).

On September 21, 2011 the Bureau of Alcohol, Tobacco, Firearms and Explosives issued an Open Letter To All Federal Firearms Licensees (FFL) in which they provide guidance on the issue.

The letter states in part:

“…any person who uses or is addicted to marijuana, regardless of whether his or her State has passed legislation authorizing marijuana use for medicinal purposes, is an unlawful user…and is prohibited by Federal law from possessing firearms or ammunition”.

Furthermore, the letter states that persons who are in a prohibited category should answer “Yes” to the relevant question on the ATF Form 4473 (Firearms Transaction Record) when purchasing a firearm from licensed dealer. Effectively, the person would not be able to receive a firearm from a licensed dealer, and is prohibited from possessing firearms at all under the Federal law.

Under the current interpretation on the Federal law, even if Florida law changes, and Medical Marijuana is authorized, persons who are documented users evidenced by a State issued I.D. card will still be subject to the Federal law, and prohibited from receiving or possessing a firearm.  Furthermore, the person who uses Medical Marijuana and is otherwise not prohibited from possessing firearms, will have to answer “Yes” to a prohibiting question on the ATF Form 4473.

How Does a Change In Florida Law Affect Florida Firearms Dealers?

As stated in the Open Letter, Federal Firearms Licensees who have a “reasonable cause to believe” that a person is prohibited from receiving firearms, can not lawfully transfer a firearm to such person.

In accordance with Federal law, and instructions on the ATF F 4473, any person who uses Marijuana, whether lawfully under their state law or not, must answer “Yes” to the relevant question on the form. Since the person has therefore admitted to being in a prohibited category, the FFL cannot transfer firearms to that person. This is no different than any other transaction in which a person indicates a “Yes” answer to a prohibiting question.

Potential Changes To The Federal Law

Under the Federal law, users of Controlled Substances are prohibited from receiving and possessing firearms; even “legal” users. Nationwide, there have been (State) cases in which lawful users of cannabis have been prosecuted for possession of firearms. Many states have laws against marijuana users (Controlled Substance) possessing firearms, even if they are “lawful users”.

As you may have noticed, a situation may exists in which an otherwise law-abiding citizen, who has been issued a Medical Marijuana card by his State, and is using prescribed medicine by a qualified physician, could be prosecuted for possessing a firearm.

Whether it’s a Federal or State prosecution, it appears that law abiding U.S. citizens may be denied a Constitutional right, even though they’ve broken no law, and are not otherwise prohibited from possessing firearms.

Certainly this situation was anticipated in light of the changing Medical Marijuana landscape nationwide. But on the Federal level, nothing has changed with respect to Medical Marijuana use and firearms possession. Another set of potential problems exist when cultivation, processing and distribution are considered.

Alaska Senator Lisa Murkowski recently sent a letter to the U.S. Department of Justice addressing this issue.

The March 2nd, 2016 letter calls for a reconciliation of “inconsistent federal laws with more permissive state laws”. In the letter, Senator Murkowski (Alaska) questions the propriety of denying a Constitutional right to “law abiding citizens”.

The Senator also points out the potential problem of a lawful marijuana user who goes to buy a firearm from a federally licensed dealer and answers “NO” to the pertinent question (11e), believing they are a lawful user of Marijuana. Murkowski believes it could expose law abiding citizens to criminal prosecution for making a false statement on the ATF F 4473 (Firearms Transaction Record).

Question 11e (ATF F 4473) (April 2012)

“Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?”

It’s not a leap to assume a user of Medical Marijuana would believe their use is “lawful”, and answer “NO” to this question. The question itself seems to imply that a “lawful use” is possible.

The Federal government has changed it’s policy toward the enforcement of Federal law with respect to marijuana. However, the issue of possession of firearms by persons who use a “Schedule 1 Controlled Substance” is another matter.

It’s not wise to attempt to accurately predict the nature of responses from the Justice Department to senatorial inquiries, but the government will likely move very slowly if at all on their position. Murkowski’s letter states the matter simply “merits a review”, and points out potential legal and practical problems for lawful users of Marijuana.

However, some will view this letter, and this move by a Republican senator as a move in the right direction. It’s likely that with time, this issue will be resolved in a way in which law abiding people’s constitutional rights are preserved.