New ATF Regulations Have Gone to Pot

atf-seal-494x495As several states have approved marijuana for medicinal or recreational use, the Bureau of Alcohol, Tobacco, Firearms and Explosives has decided to tweak its Form 4473 to address this matter. Form 4473 is the form that must be filled out when a person purchases a firearm from a Federal Firearms License (FFL) holder (such as a gun shop).

Beginning January 16, 2017, all purchasers must complete the new, revised form. After that date, any older version of the form that is submitted will be rejected.

One of the revisions to the form concerns Question 11.e. regarding the use of marijuana and other drugs. The federal government still outlaws marijuana as a Schedule I controlled substance and, therefore, the new form contains a warning that reads as follows:

11.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.

The change came after the San Francisco based U.S. Circuit Court of Appeals for the 9th Circuit, upheld ATF’s ban on gun sales to marijuana users, noting, that marijuana “raises the risk of irrational or unpredictable behavior with which gun use should not be associated.” The court ruled that prohibiting medical marijuana cardholders from purchasing guns does not violate their Second Amendment rights.

The case stemmed from a woman who was stopped from purchasing a firearm from a gun store because she had a medical marijuana registry card strictly as a political statement even though she did not use the substance personally.  The court held that the correlation between having a card and the likelihood of using marijuana justified the extension of the ban.

“Registry cardholders are more likely to be marijuana users, and illegal drug users, including marijuana users, are more likely to be involved in violent crimes,” the 9th Circuit opinion reads. “Accordingly, preventing those individuals who firearm dealers know have registry cards from acquiring firearms furthers the Government’s interest in preventing gun violence.”

So, if you answer “Yes” to Question 11.e., you will be prohibited from buying a firearm from a licensed dealer (or anyone if mandatory background checks become the law).  Making a false statement on the form is a felony.

The ATF could receive access to the information in a medical marijuana user database with nothing more than a subpoena, as happened in Oregon when federal agents were able to obtain the records of dozens of medical marijuana users. Under current law, law enforcement can’t access the entire medical marijuana registry to cross reference it with gun registries and concealed handgun permits, agencies do have the ability to search on a case-by-case basis to see who may or may not have concealed handgun licenses or permits in the state.

Medical marijuana users could find themselves being denied the purchase of a gun, or possibly even having to surrender or dispose of firearms already in their possession under federal law.

Whether or not you approve of the medicinal or recreational use of marijuana, the federal government has exercised its right under the Supremacy Clause of the U.S. Constitution to usurp state laws with regards to the criminalization of marijuana.  But should the federal government be allowed to access these registries that contain personal medical information purely on a fishing expedition in hopes of finding out whether or not a crime has been committed?

Even the privacy assured under HIPAA laws (Health Insurance Portability and Accountability Act) do not necessarily apply when it comes to the federal government.  On January 4, 2016, the Department of Health and Human Services modified its Privacy Rule to expressly permit certain covered entities to disclose to the National Instant Criminal Background Check System (NICS) the identities of those individuals who, for mental health reasons, already are prohibited by Federal law from having a firearm.

It is therefore not too much of a stretch to believe that the HIPAA Privacy Rule will once again be modified to allow the sharing of medical marijuana registries with federal agencies.

We turned to U.S. Law Shield of Colorado Independent Program Attorney Doug Richards for his take on how this may impact the people of the Centennial State. Here is what he had to say:

“Colorado has been on the forefront of legalizing marijuana in the United States. What was once a substance available illegally only on the black market, later became legal when the law was changed to make medical marijuana available. To legally purchase medical marijuana, you were issued what has become known as a ‘Red Card.’

“Today, however, the law is more expansive and permits recreational sales of marijuana to anyone 21 years of age or older, similar to alcohol sales.

“While the state marijuana laws in Colorado have changed, the Federal laws have not and still list marijuana as a controlled substance. Therefore, marijuana is still banned under federal law.

“The effect of this federal prohibition extends beyond whether you can lawfully possess marijuana, but to many other aspects of our lives. The changes to ATF Form 4473 question 11(e), for example, reflect the current conflict between state and federal law, and leave firearms owners in an uncomfortable position.

“If you have a Red Card, what should you do when confronted with this question when purchasing a gun?

“The only clear answer I can provide is that you should never lie on question 11(e). When I was a federal prosecutor, I used false answers on this form as a basis for criminal charges. The consequences for providing false information are significant.

“However, your facts are unique to your particular circumstance. If you have questions about this form, your circumstance, and how it affects your 2nd Amendment Rights, it is critical that you consult with an attorney before signing ATF Form 4473.”

We at U.S. Law Shield will continue to monitor this matter to see how the federal government interprets and enforces the change to Form 4473 after the new forms are introduced.— by Michael Wisdom, Senior Contributing Editor, Texas & U.S. Law Shield Blog



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