In late September, I wrote about the letter sent by the ATF to all federally licensed firearms dealers, explaining that it was illegal to sell guns or ammunition to state-licensed medical marijuana users.
The reasoning behind this was a clause in the Federal Firearms Act that states that a person cannot purchase or possess a gun if they are “an unlawful user of, or addicted to, marijuana, or any depressant, stimulant, or narcotic drug, or any other controlled substance.” The ATF reminded gun dealers that marijuana is still illegal according to the federal government, and that having a medical marijuana license was proof that a person fit the definition of an unlawful user or addict. Of course, a state-licensed patient is a lawful user as far as the state is concerned, but as we have seen, the feds do not care all that much about state law.
In a debate between MPP’s Steve Fox and former head of the ATF Mike Sullivan, Sullivan repeatedly claimed that the ATF’s hands were tied in this matter. Contrary to the claims that the ATF is simply reminding gun dealers about the law, the ATF actually has the discretion to define what they consider to be an “unlawful user.” In the absence of a court decision clarifying the definition, the ATF had every right to issue a memo that instead declared state-legal medical marijuana users to be lawful users and exempt from this particular status. Instead, they decided to use the vague law as a cover to deny sick people their constitutional right to bear arms.
Well, it looks like this might get cleared up in the (reasonably) near future.
On Oct. 4, outspoken Nevada medical marijuana advocate Rowan Wilson was denied purchase of a handgun due to her status as a patient. On Oct. 17, she and her attorney announced that she is suing the ATF and the federal government.
If this case goes to trial, federal judges will have the ability to determine whether patients in jurisdictions that allow the medical use of marijuana are, in fact, unlawful users pursuant to federal firearms laws.
Let’s hope they side with Ms. Wilson.
So far, gun rights activist groups like the National Rifle Association have been largely silent on this issue, but smaller organizations such as the Montana Shooting Sports Association and the Independent Firearms Owners of America have offered their support.
When asked why gun rights activists should support medical marijuana patients in this instance, IFOA president Richard Feldman said, "Republicans, Conservatives and independents need to face the dire economic realities facing our nation and stop funding programs like the war on drugs that don't work, corrupt law enforcement and grow criminal enterprises. Our experience with alcohol prohibition teaches us how to lessen both the harm and the costs to society from banning substances which otherwise law abiding individuals will pursue. As gun owners many of us subscribe to the maxim, 'Better to be caught by the police with one, than by a gang banger without one'! It's time American face reality, deal with it intelligently, and stop protesting it, regardless of the 'it' being guns or marijuana."
In the latest move of the Obama Administration’s incomprehensible attack on medical marijuana, U.S. attorneys announced today that they will begin to prosecute media outlets that publish advertisements for medical marijuana! It seems that when it comes to medical marijuana users, or the states in which they live for that matter, the Bill of Rights means practically nothing.
First, there was the memo released by the ATF this month warning firearms dealers that it was against the law to sell guns or ammunition to medical marijuana patients, effectively eliminating the Second Amendment rights of hundreds of thousands of patients in states where medical marijuana is legal. Then on Friday, when the U.S. attorneys from California unveiled their intent to shut down the medical marijuana industry and drive patients into the hands of gangs and other illicit dealers, they said that one of their core tactics was to intimidate landlords and property owners who rent to dispensaries by threatening them with seizure of their assets. While this may not be a direct violation of the law (unfortunately), it certainly treads on the spirit of the Fourth Amendment’s protections of life, liberty, and property. Now, those same attorneys are stomping on the First Amendment as well.
The actions of the Department of Justice are simply baffling.
In its vain and misguided attempt to stymie medical marijuana and stop the reform movement from making any further policy gains, the DOJ is basically trying to shut down two industries that make money, employ many people throughout California, and earn tax revenue for a state in a disastrous economic situation. Neither of these moves makes any sense. Shutting down the medical marijuana industry is not going to stop marijuana production. Denying them the ability to advertise by prosecuting those who publish the ads will not stop marijuana distributors from making a profit. It will, however, be disastrous for the publishing industry. Both the medical marijuana and publishing industries provide much-needed jobs and revenue to California. These methods are quite simply poor tools to accomplish an illegitimate goal. The fact that the media, which has the ability to sway public opinion against the administration, is being targeted seems particularly stupid.
Now, there are of course justifiable reasons for not allowing advertisement for some illegal activity. It is interesting to note, however, that pharmaceutical companies that sell drugs for billions in profits (the very reason the DOJ claims the marijuana industry is so evil) are allowed to advertise freely in all mediums.
Constitutional and federal law aside, it is morbidly fascinating from a philosophical standpoint that the administration is subverting the right to use marijuana to treat one’s illness by attacking two other, more deeply-held rights. After all, it certainly seems that more Americans care about free speech and property rights than they do about bodily autonomy. Will this policy end up being counterproductive to the stated goals of the administration?
Probably. Just like every facet of prohibition, it is pretty much doomed to failure in the long run.
If you’d like to tell the president how you feel about this, please go here or call (202) 456-1111.
In an act of outright legislative interference, S.B. 423, “repeal in disguise,” promised to regulate but instead flouted voters’ wishes and cruelly and arbitrarily gutted Montana’s medical marijuana program, shuttering most providers and reducing the number of patients. By mid-August, the number of patients had dropped by 10% and only 1% of medical marijuana providers remained in business, leaving patients without access to medicine.
However, Montanans have fought back. First, the Montana Cannabis Industry Association got a judge to temporarily block implementation of part of the law. Even more excitingly, Patients for Reform — Not Repeal successfully collected enough signatures to put a referendum to overturn S.B. 423 on the November 2012 ballot! The Secretary of State confirmed that the referendum had already exceeded the minimum signature requirements, and organizers announced they collected more than 46,000 signatures. Kudos to the petitioners; we will keep you updated!
Sadly, another legislative move overturning the will of the people, H.B. 391, went into effect on Saturday. It is intended to overturn Missoula County’s Initiative 2, which made marijuana offenses the lowest law enforcement priority. As a result, local initiatives may not de-prioritize the enforcement of state law. Missoula County Attorney Fred Van Valkenburg, who pushed for the bill, says he will move forward with prosecution of marijuana misdemeanors.
Luckily, many Montanans are very upset by these attempts to overturn the will of the voters, and are lending support to the medical marijuana community. Even the Attorney General Steve Bullock is speaking out, although more so about the ATF announcing that it is illegal for medical marijuana patients to purchase or possess firearms.
We are all used to the federal government offering only limited deference to states when it comes to medical marijuana. And we are certainly used to it refusing to admit that patients have a legal right to use marijuana for medical purposes, or even that marijuana has medical value at all.
Apparently, it also thinks that those who are abiding by state law and using medical marijuana do not have certain constitutional rights, either.
In a memo issued last week by the Bureau of Alcohol, Tobacco, Firearms, and Explosives, the federal government asserted that it is a violation of federal law to possess a gun or ammunition if you are a marijuana user. This broad definition also includes individuals who are state-legal medical marijuana patients.
It is important to note that this is only the opinion of the BATFE and is not legally binding. A case dealing with this issue for an individual patient has not been taken up on a federal level, yet many who are charged with federal marijuana violations often find themselves facing additional firearms charges extending from searches of their property. The Department of Justice has so far kept fairly close to its word when it comes to leaving medical marijuana patients alone, but one could easily imagine a situation in which a firearm violation could be used to prosecute a particularly meddlesome patient who may not be doing anything involving marijuana that would warrant investigation.
It is also important to remember that the federal government cannot force state and local law enforcement to enforce federal law. For example, the DEA can’t make the Colorado state police ignore their medical marijuana laws and start arresting patients for violating the Controlled Substances Act. So don’t start worrying that just because you have a medical marijuana card, you are about to be raided because you own a firearm. In fact, a court decision in Oregon ruled that states have every right to allow patients to possess firearms and may even grant them concealed-carry licenses if they wish.
However, federal law enforcement does reserve the right to charge you with firearms violations if you are a patient and own a gun. This should be no more worrisome in practical terms than the Department of Justice asserting that it has the legal right to charge you with marijuana violations if you are a patient and own some medicine.
This is much more troubling in terms of individual rights and human dignity. The Second Amendment clearly states our rights as citizens to possess firearms. The federal government, however, seems to think that people who use marijuana to treat their illnesses can not only face arrest for doing so, but are also not entitled to the same constitutional rights as everyone else. Regardless of the promises to not target medical marijuana users, it is pretty clear that the government views them as second-class citizens. This discrimination cannot be tolerated in a free society.
The full memo can be viewed here.
Special thanks to Ed Docter from the Montana Cannabis Industry Association for the tip.