IM26 & Amendment A passage may cause thousands of South Dakotans to lose their rights to buy a gun or ammunition under federal law.

In a week, people across South Dakota will be voting on the passage of Initiated Measure 26 to allow medical marijuana in South Dakota, as well as Amendment A, which would legalize the use of marijuana and enshrine it in the state constitution. According to recent polling, both measures certainly have their supporters, and will be running competitively in the state. But you don’t seem to be hearing a lot of what the negative effects of passage will be.

There’s potentially a huge bombshell lurking in the weeds for many South Dakotans that doesn’t seem to have come up. Until now.  Because there’s at least the possibility that under federal law, marijuana use at the state level could disqualify people from the use, possession, or transfer of firearms. While they might think they’ve gained a new right, people might end up trading the right to use pot for the right to purchase or possess a firearm or ammunition.

Now, before you start throwing out anonymous angry comments, that’s not anti-drug hysteria, and it’s not telling people to “just say no.”  It’s what the federal government is pretty open saying on form 4473, the Firearms Transaction Record from the U.S. Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives. Basically, it’s the form that is filled in when a person purchases a firearm from a Federal Firearms License (FFL) holder:

Atf 4473 by Pat Powers on Scribd

In the current version of form 4473, on the BATF website, Question 21e, it asks firearm purchasers “Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, 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.”

With the warning in the form, clearly the ATF recognizes the conundrum that the question poses to firearm purchasers, but as the question notes, there is no wiggle room.

If you’re using marijuana, you’re an unlawful user, because it remains criminal under federal law. And your right to buy a gun goes away.

But it doesn’t end there. Because the person filling the form out has to further certify that their answers are true and correct:

I certify that my answers in Section B are true, correct, and complete. …. I understand that a person who answers “yes” to any of the questions 21.b. through 21.k. is prohibited from receiving or possessing a firearm. … I also understand that making any false oral or written statement, or exhibiting any false or misrepresented identification with respect to this transaction, is a crime punishable as a felony under Federal law, and may also violate State and/or local law…

So, if you’re planning to be a marijuana or medical marijuana user, you might have some complications if you are a hunter or will defend your home. Because as noted by the ATF, you could run into an issue because you are “prohibited from receiving or possessing a firearm.”  And if you lie about it? You’ve just committed a federal felony act.

One thing to consider about this prohibition under federal law is that this is nothing new, as way back in 2011, the ATF under President Obama sent a memo out about the conflicts of the legalization movement in states and the purchase of guns and ammunition:

092611 Atf Open Letter to All Ffls Marijuana for Medicinal Purposes by Pat Powers on Scribd

Therefore, 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 of or addicted to a controlled substance, and is prohibited by Federal law from possessing firearms or ammunition. Such persons should answer “yes” to question 11.e. on ATF Form 4473 (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 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.”

That’s a pretty definitive statement, which has been in effect for nearly a decade.. but this isn’t something we’ve heard until now.  And I’m somewhat surprised.

Because when that statement was issued from the US Department of Justice on September 21, 2011, I’m sure they would have brought it up to the US Attorneys in office at the time. Including South Dakota US Attorney at the time, Brendan Johnson.  And that would be the same Brendan Johnson who is out promoting the legalization of marijuana at the state level.

Recently (I believe about 2015), the ATF sought comments regarding revisions to Form 4473, and some of the comments asked that the ATF revise the Form to state that “users of state-licensed physician prescribed marijuana for medicinal purposes” are not categorized as unlawful users of a controlled substance pursuant to 18 USC 922(g)(3) and Question 11.e on Form 4473.  The ATF response letter rejected this proposal. “ATF cannot accept your suggestion,” and reaffirmed the 2011 open letter. They were quite definitive, and noted “There are no exceptions for medicinal purposes,” because a licensed physician cannot prescribe marijuana” consistent with federal law.

The bottom line is that no matter what we pass in South Dakota, Initiated Measure 26 and Amendment A have no impact on the federal law.  And I don’t know that Congress has much of an interest to relax laws, and give guns to drug users anytime soon.

IM26 and Amendment A has the potential to fool residents into thinking their possession and receipt of firearms is legal when put up against a state right to buy marijuana.

And people might just find out the hard way that they’ve traded a new right for a foundational one.

20 thoughts on “IM26 & Amendment A passage may cause thousands of South Dakotans to lose their rights to buy a gun or ammunition under federal law.”

  1. It’s ridiculous that it’s still illegal at the federal level. I’m a big supporter of A26, but the next hurdle is to tackle the federal roadblocks. States with legalization still face banking issues because of the federal laws.

    Prohibition creates criminals, it does not reduce the use of a substance/product.

  2. Great article. I am now against Amendment A and IM 26. This is a real problem in neighboring states that have legalized some form of marijuana —- people have lost their gun rights and can’t even go hunting, let alone engage in self-defense with a firearm.

  3. Please see the Supremacy Clause of the US Constitution, the 10th Amendment of the US Constitution, and look into what is known as the “anti-commandeering doctrine” (the feds don’t have the man power to enforce this in multiple states). That goes for the right to bear arms and the plant issue.

    As with many other federal regulations, this one doesn’t even come close to being in pursuance of the US Constitution (supremacy clause), so, therefore, it’s automatically null. The fact that the federal government does something does not give it automatic supremacy. It must be rooted within the enumerated powers delegated to it by the Constitution.

    I don’t advocate for the chronic use of this stuff, but let’s not trample our constitutions even more just because you’re against a plant.

    1. In many cases this may be true, however, SCOTUS has ruled dozens of times federal gun regulation and drug regulation/prohibition is Constitutional.

      Further, in many cases, the same political alliances pushing gun control and pot legalization are the same people. Not a coincidence.

      Like Kamala said, they are coming for our guns

      1. Well then, I’d say it’s time we stand up and not let the feds come in here dictating what we can do with our guns then! Again, unless law is pursuant to the federal constitution, the feds have no ground to stand on. It’s protected in our state constitution. It just takes us getting off of our backsides, electing constitutional sheriffs with backbone, and standing up for it.

        1. That might be your interpretation of the Constitution but it is not the interpretation of the SCOTUS.

          That said, there is the option of changing federal gun and drug law. So, that is where the fight is. If you don’t and this passes, expect to sacrifice your ability to buy a gun.

          1. They only sacrifice the ability to buy the gun if they use marijuana, Troy. The law’s passage alone doesn’t prevent gun purchases. Stop lying.

  4. If, after it passes, 2A protections is the only thing the legislature tinkers with, I would be happy. Gun rights are important .. especially when it comes to protection of other freedoms. If the cannabis market quickly proves itself as safe, profitable, and (dare I say it) an Ag boon for SD, will cannabis freedom be crushed while allowing legal gambling, alcoholism, opioid overuse, and meth (Schedule II)? I’ll have more trust in a system – and more faith in humanity – that de-prohibits cannabis and sees a drop in liquor license applications at City Hall.

    I wonder if Alcoholism could be one of the medical conditions addressed by a doctor’s recommendation for cannabis ..

    If the state doesn’t win an immediate lawsuit challenging both of these legal propositions, the legislature will surely have something to say about them.

    Will the governor errs on the side of human freedom and choice?

    Will she oppose the legalization of cannabis, widely used among the founders and framers of the republic as medicine and textiles?

    Some interesting trade-offs: gambling, opioids, black market, research, industry, economy, agriculture.

  5. You know, Pat’s doom and gloom scenario is only an issue with Trump in the White House running the DOJ in 2021. A Biden admin wouldn’t have the feds going after pot, so this is nothing more than much ado about stupid.

      1. Obama policy shifted in 2013 after CO and WA voted to legalized at the end of 2012. The memo in question was superseded in 2013 by the Obama administration at that point. Again, Biden admin would follow the 2013 standard if not relax it more, so this is only a problem if Trump wins and pursues. You’re grasping at straws here.

  6. IM 26 passes every SD Legislator is immediately faced with potentially breaking their Oath of Office. Lobbying Congress to move Marijuana to a Class 3 automatically alleviates banks and pharmacies from being involved and solves that problem.

    And we don’t get to pick and choose which part of State or Federal laws we have to follow.

    1. I already own guns the Government doesn’t know about and smoke weed illegally as was intended. That was what the founding fathers wanted-FREEDOM. Screw your silly institutions, I am my own Nation.

  7. I wonder how many people in Alaska, Washington, Oregon, Nevada, Colorado, Illinois, Michigan, Massachusetts, Vermont, Maine, Montana, Utah, New Mexico, Arizona, North Dakota, Minnesota, Oklahoma, Missouri, Arkansas, Louisiana, Ohio, West Virginia, Florida, Delaware, New Jersey, New York, Connecticut, Rhode Island and Hawaii have been denied gun ownership because of this. Pat, have you got some numbers? It must be uge.

    1. All those states have different gun laws. For example, Illinois requires a FOID card which is linked to a driver’s license and when you go to purchase mj a scan of your license is required. Do IL residents have to give up their FOID card if they are prescribed mj? There’s a lot of contradiction bw Federal and State law.

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