[IMAGE CREDIT: iStock / Lumppini]
(This Article was First Published in LLN in May, 2017 — Issue No. 30 — Having First Appeared in The Sportsmans’ Gazette.)
Florida citizens who value their firearms rights should avoid medical marijuana. For many, this is perplexing in light of the recent decision by Florida voters to decriminalize medical marijuana on a broader scale. However, the federal government still considers marijuana (aka cannabis) to be illegal to possess for any reason.
The savvy reader may note that cannabis is now legal in some form in more 30 states and wonder how this could happen in light of the federal opposition. The answer is that we are currently in a time of legal flux and many grey areas have been created that pose a hazard to law-abiding citizens. This article will provide the reader with a survey view of several issues in play.
Naturally the starting point is the United States Constitution and the Second Amendment thereto. The Second Amendment does not create gun rights that previously did not exist. Rather the amendments were intended to be an acknowledgement by the Founding Fathers that each American Citizen has inherent liberties that exist naturally without human artifice or design.
Since the creation of the Second Amendment, various state and federal laws have been created that have placed restrictions on the intrinsic right to keep and bear arms. However, because of another constitutional provision called the Supremacy Clause, the federal rule trumps any less restrictive state rule. This means that if the state and federal law conflict, the federal law is the one that must be followed.
It was not until the National Firearms Act (NFA) was passed in 1934 that any gun restriction of note was implemented by the federal government. When major rule making finally found its legs in the NFA it was not in response to actual and wide-spread tumult but rather the misdeeds of a handful of prohibition era gangsters. The Federal government asserted, in an unprecedented fashion, that it had the right to regulate all U.S. citizens where it previously had not such power.
Then in 1968, Congress passed the Gun Control Act (GCA). Even though no provision within the Second Amendment provides the federal government with express authority for such action, the GCA, standing on the shoulders of the NFA, made it illegal for convicted felons, and others, to own firearms and created the requirement that all commercial gun purchases happen only via federally licensed firearms dealers (FFLs). It is in the GCA (written down in 18 U.S.C. 922 of the federal code) that the phrase “prohibited class of persons” can be found and it is used to describe citizens who, for various reasons, are not legally allowed to own or possess firearms or ammunition.
As an aside, much of the GCA language is widely viewed as having been a well-intentioned but largely ineffective reaction to the assassination of President John F. Kennedy, whose killer is believed to have purchased his bolt-action rifle through the mail.
Whatever the politics of the day may have been, the clear aim of Congress in creating the FFL requirement was to allow the federal government to restrict the sale of firearms in a way that would afford oversight to the newly formed ATF. As a practical means of accomplishing its mission, ATF created the Form 4473 that contains a series of questions that must be answered by every prospective purchaser prior to completing a firearms sale. The FFL is required to inspect the citizen’s answers and stop the sale if a prohibited status is disclosed. Each prospective buyer must answer truthfully, under penalty of perjury, and the questions include inquiries that closely follow the language contained within 18 U.S.C. 922. These queries require the buyer to disclose, among other things, whether he or she is “an unlawful user of,or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?” as well as any felony criminal record and citizenship status among others. However, the controlled substance question is the one that plays such a large role in the medical marijuana issue because what constitutes an “unlawful user” is difficult to determine.
The GCA constituted a sweeping power grab at the federal level and many things changed after it was enacted. Of note is one of the few things that it didn’t change. Specifically, the GCA does not prohibit the private sale or gift of firearms. This means that in states that permit such things (such as Florida) a bona fide private sale or gift does not require either a 4473 or background check.
It is important to clarify one major point. This article is not a ‘how-to’ guide for an aspiring criminal and just because the ATF may not be made aware of a private firearm sale doesn’t mean that it is OK for a member of the prohibited class of persons to buy a gun from a private seller. Both Florida and federal law make it very clear that any member of the prohibited classes of persons is prohibited from possessing a firearm or ammunition. The framework for the modern U.S. firearms regulation has changed relatively little since the GCA. Although there have been several hallmark gun control measures that were passed between 1968 and the present day, none are as relevant to the questions surrounding medical marijuana.
Now the question of jurisdiction and authority must be discussed to complete the analysis. Although congress is charged with making law, it frequently delegates the finer points of rule making to various administrative agencies that specialize in the particular matter being legislated. These agencies are sometimes referred to as the Fourth Branch of Government and have grown extremely powerful over the years. Although an administrative agency may not act in contravention of the U.S. Constitution, the Fourth Branch wields tremendous power.
The ATF has extremely wide latitude when it comes to making rules within its mandate. To that end, the ATF will frequently generate opinion letters (sometimes referred to as “open letters”) that essentially state the agency’s legal position on a given matter. This discretion is what allowed the ATF to formulate the 4473 as it saw fit and it is this same discretion that allows it to modify the form as it deems necessary. The ATF issued an Open Letter in 2011 on the subject of medical marijuana. The message was quite clear that because marijuana is classified by the Drug Enforcement Agency as a “schedule 1” drug, the same as heroin or methamphetamine, there is no legal way to possess any quantity of the substance for any reason. Ergo, the ATF directed all FFL’s to deny sale of a firearm to anyone that discloses their use of cannabis whether it is medically prescribed or not. This rule has, heretofore not been present on the actual 4473 form and, given the current reform in the area of drug law seems to some to be controversial.
The 4473 has not been a stranger to controversy as it demands that buyers disclose a host of highly sensitive information including race and place of birth. The ATF has also mandated that these forms be retained by the FFL for a period of not less than 20 years. Ostensibly this requirement is to aid law enforcement in their duties combating crime. However, critics decry it as a defacto ‘gun registration’ program, which is illegal under federal law. In concert with location of birth, current home address, height and weight information, the 4473 form contains an incredible amount of very personal information in addition to the mandatory disclosure questions. All of this has been implemented by the ATF which has deemed such information necessary.
The language of the 4473 is apparently intended to help ensure accuracy and to filter out people that are considered “prohibited persons” by the law. Of concern to some, is that the definition of what constitutes a “prohibited person” has been expanded over the decades despite no such provision existing within the Second Amendment. It is now possible to permanently lose gun rights after a misdemeanor conviction and the number of ways to become a felon has also increased since the GCA was passed.
Because there is no national gun license or gun registration program in the United States, the ATF’s ability to impose its will is somewhat hampered because it can only effectively govern the sales that take place through licensed dealers. This doesn’t mean that the ATF doesn’t have jurisdiction to enforce the law against individuals, but as a practical matter, the ATF is simply not legally entitled to know about a lawful private sale in Florida.
As this relate to the topic of medical marijuana and firearms rights, Florida gun owners, who wish to use medical marijuana, will be directly effected by these issues because the ATF recently announced that, in 2017, a new 4473 form will need to be used that contains the express disclaimer that FFL’s may not sell a gun to a medical marijuana user because the ATF deems all cannabis to be illegal and therefore there can be no ‘lawful use’ of the drug. To many this would be the end of the discussion and in many ways it is for those that do not have the desire to fully assert their rights.
For those that wish to know more, it is worth noting that the ATF must still abide by the Constitution. Although the ATF appears to have the present authority to direct FFL’s not to sell to medical cannabis users, its jurisdiction with respect to private sales appears to be more limited. This is because the federal rule that contains the regulations on gun ownership (18 U.S.C. 922) doesn’t delve into detail about the medical marijuana issue and in Florida it is legal for citizens to sell a firearm, in an isolated fashion, to another citizen without using a 4473.
This position is bolstered by language used by the Justices in the recent 9th Federal Circuit Court of Appeals case, Wilson v. Lynch, D.C. (No. 2:11-CV-01679-GMN-PAL). That case involved a woman (Wilson) who had been issued a medical marijuana card and was denied the purchase of a firearm by the gun dealer as a result. A finer point of the decision deals with the fact that Wilson didn’t allege that she actually used marijuana and only received a medical marijuana card ostensibly to exercise her First Amendment right to free speech. This is a nuance that could differentiate the case from someone that actually uses medical marijuana. The case appears to stand for the fact that medical marijuana use would not make mere possession of a firearm illegal. In other words at least one prominent set of federal judges has publicly acknowledged that some form of possession of medically prescribed cannabis may not act as a means by which to strip a citizen of her gun rights.
The Wilson case also sheds some light on the true weight that is given to the “Open Letters” that the ATF releases from time to time. Wilson challenged the letter by the ATF from 2011 that was referenced earlier wherein the ATF expressed its position that medical use of marijuana is not a lawful use. The Justices concluded that the letter was essentially just a statement of policy that carried no legal authority. In other words, the ATF is free to state what it thinks, but as long as it is not seeking to create a new rule that would burden a citizen such statements mean little from a legal standpoint.
So where does all of this leave Florida gun owners who wish to legally use medical marijuana? Frankly, it leaves everyone in uncharted waters. FFLs are prohibited by ATF from selling a gun to a person who admits to using marijuana under any circumstances, and lying about marijuana use, or anything else, on the form 4473 is perjury.
However, the Supreme Court is likely to break its deadlock soon because it will shortly take on a new member. As the justices begin hearing cases again, there will be a chance for Wilson and others to have their plea heard by the highest court. Until then, the only safe way for a Florida firearms owner to fully protect their Second Amendment interests is to avoid all unlawful narcotics including marijuana completely until such time as a court of competent jurisdiction rules definitively or legislation is passed that clarifies the matter.
Zachary J. McCormick is in the private practice of law in Tavares, Florida, and often writes legal articles concerning firearms law. [PHOTO CREDIT: Ashley McCormick Photography]