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:
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:
“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.