Marijuana Card vs the 2nd Amendment

"Flower Power". National Mobilization Committee to End the War in Vietnam March on the Pentagon 1967. Photo by Bernie Boston

People in many states are currently and have successfully pushed to legalize the medicinal or recreational use of marijuana. For some the dream of soon being a legally certified Pothead are on the horizon! But there is a hidden cost and it’s steep.

Medicinal Marijuana Cards

My state, Arizona, followed the trend of many others a few years ago and passed medicinal marijuana laws. Legally purchasing marijuana in Arizona requires an “ADHS Medical Marijuana” card. This can be obtained by getting a licensed physician to fill out a form that you then submit to the ADHS online (Arizona department of Health Services) with a yearly payment of few hundred bucks. You can find these physicians in the classifieds, the internet, or the back pages of the local New Times or popular marijuana publications. This process allows you to possess up to 2.5 ounces of pot for Medicinal purposes or if you have a cultivation license you may grow up to 12 plants.

It is still illegal to smoke Pot in public even if you do have a card and you can be prosecuted for doing so. It’s also still against Federal law to use, possess, transport, manufacture, purchase, or sell marijuana under the Controlled Substances Act passed by President Richard Nixon. (54-0 in the Senate, 46 chose not to vote. 341-6 in the House 82 chose not to vote )

The Second Amendment

Technically, the Second Amendment, as written, doesn’t give a whiff if you are drunk, high, crazy, sane, a slave, or any other qualification to possess a firearm, including whether or not you are even a citizen.

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

Second Amendment to the Constitution of the United States. Cornell Law School 

So…what’s this have to do with pot? Even though the Second Amendment states otherwise, there are many unconstitutional laws that are being rigorously enforced by the Government. One of these happens to be a background check which is a Federal requirement to purchase a firearm in most cases. In order to purchase a firearm from a Federal Firearms License holder (FFL), you are required to fill out form 4473 provided by the ATF. Some states have laws that allow you to purchase guns from a private sale. However, selling guns in a private sale is very risky as it’s still illegal to sell a gun to someone who cannot legally obtain one. But that’s a whole other topic for discussion.

The aforementioned form 4473 background check is the first place you will run into a problem as a Pot Smoker attempting to purchase a firearm. Specifically question 11.e.

e. 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.

Question 11.e of ATF form 4473

A check mark indicating “Yes” in this box is an automatic disqualification of gun ownership, as stated a second time on the form right above your required signature on line 14.

I understand that a person who answers “yes” to any of the questions 11.b. through 11.i and/or 12.b. through 12.c. is prohibited from purchasing or receiving a firearm.

Line 14 of ATF form 4473

Both of these lines are specifically bolded in the document as to bring particular attention to them. Simple conclusion? The ATF does NOT want pot and other drug users buying guns.

I know that many people do smoke pot and simply check “No” on the box in the background check form. If you are one of them, there is a good chance the ATF doesn’t know anything about your drug habits and never will. While it’s still illegal, it’s normally not a really big deal; if you are willing to lie on a federal form that is. Unfortunately, if you have acquired a medicinal marijuana card, which requires you to register with the state, it is a very big deal. With the card, the ATF does know about your drug use and they can prove it.

WARNING: You may not receive a firearm if prohibited by Federal or State law. The information you provide will be used to determine whether you are prohibited from receiving a firearm. Certain violations of the Gun Control Act, 18 U.S.C. 921 et. seq., are punishable by up to 10 years imprisonment and/or up to a $250,000 fine.

Preamble to the Question section of ATF form 4473

As you can see above they aren’t messing around with this stuff.

So? Big deal. What if I already own all the guns I want and never plan on purchasing another one? Then I have nothing to worry about right? Not exactly. 

The Gun Control Act of 1968 or GCA, one of many examples of NRA supported Gun Control bills, forbids anyone who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)) from shipping, transporting, receiving, or possessing, firearms or ammunition.  

If that wasn’t enough the ATF even penned an open letter specifically addressing medicinal marijuana questions in 2011. 

Therefore, any person who uses or is addicted to marijuana, regardless of whether his or her State has passed legalization 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.

ATF open letter to all Firearms Licensees

Again, you may have purchased guns before getting the card and may or may not have been a drug user at any time during or before said purchases. However, if you possess a medicinal marijuana card the ATF automatically considers you a drug user, and you are no longer legally allowed to possess firearms and or ammunition by Federal law.

States like Nevada and Colorado no longer require any kind of registration or card to purchase marijuana. However, it’s still illegal to possess both simultaneously and that’s something the ATF seemed to stress in their open letter. While it’s harder to get caught lying about it, you still better make damn sure you are never in possession of a firearm and marijuana or any controlled substance at the same time.

In most cases, when you hear stories of pot farmers or low level pot dealers getting some extreme sentences of prison time, it’s most likely that person was also in possession of a firearm when they got busted. A small amount of pot without a firearm is usually a ticket or a small fine, but pot with possession of a firearm, can land you a 250k fine and 10 years in jail. Even if you have a medical marijuana card!

Until congress repeals the drug laws, or the firearm laws, or both, you will be stuck with a choice. Is getting high really worth losing your civil rights?

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