When a person decides to consume cannabis, they risk a lot whether they realize it or not.
The consumption of cannabis can put a person at risk of being arrested, loss of or prevention from employment, and much more.
Even in states where cannabis is legal for medical and/or adult use, risks are still present.
In all cases, consuming cannabis results in people giving up one of their constitutional rights – the right to purchase a gun.
Background check question and the Gun Control Act of 1968
In 1968 federal legislation was passed (Gun Control Act of 1968) which essentially stipulated that anyone who consumes a federally banned substance was not eligible to purchase a gun.
The reasoning behind the legislation was that people who consume federally banned substances are more likely to commit violent crimes with guns.
With the federal law in place, background checks for prospective gun purchasers started to include a question asking if people consumed banned substances.
Not all gun purchases required a background check at the time, and some still do not depending on the nature of the sale.
But when the question is asked, and the prospective purchaser states that they consume cannabis, the person selling the gun is supposed to refuse to sell the gun to the person.
U.S. Ninth Circuit Court of Appeals upholds gun purchase ban
In 2011 the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) issued a memo that made it very clear that guns were not to be sold to cannabis consumers, even in legal states.
A medical cannabis patient named S. Rowan Wilson, a woman from Nevada, tried to purchase a gun in 2011, was denied, and challenged the denial in court.
The case made its way to the United States Ninth Circuit Court of Appeals which ruled against Ms. Wilson in a unanimous decision.
In the court’s decision, it was reasoned that a direct link between cannabis use and increased violence need not be established, just that the two existed simultaneously.
So far the United States Supreme Court has refused to pick up the case, which means that the lower court ruling stands.
While the decision only directly applies to the states in the Ninth Circuit Court’s jurisdiction, states across the country continue to prohibit gun sales to cannabis consumers so the decision is effectively binding in a non-formal fashion.
What does the background question specifically ask?
After the appellate court ruling, the ATF added a warning to its ‘Firearms Transaction Record’ form (form 4473).
The form specifically asks:
“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.”
If the prospective gun purchaser states that they do consume cannabis, the sale of the gun to that individual is prohibited.
On the other hand, if the person states that the answer is ‘no’ yet they are a cannabis consumer, they are liable of being convicted of perjury which is a federal felony.
The hypocrisy involved with the gun sale ban is obvious
A number of substances, while not being federally illegal, have been shown to directly increase the rate of violence in people that consume those substances.
The most obvious one is alcohol.
Of the more than 11 million people who are the victims of a violent crime annually, almost one-fourth of them reported that the offender had been drinking prior to committing the crime.
Yet someone could not only be an alcohol consumer and still purchase a gun, they also could have consumed alcohol right before the purchase, and the alcohol use would not prevent the sale.
Studies have shown that there’s a greater rate of violence among cigarette smokers than there is among non-smokers, yet cigarette smokers are not prevented from purchasing guns (and rightfully so).
So why is cannabis being singled out?
Just because cannabis is prohibited at the federal level does not mean that people should have to give up their 2nd Amendment right to purchase a gun.
States will continue to struggle with the issue
It is worth noting that the 1968 legislation, as well as the appellate court ruling do not state that a person cannot own a gun, just that they can’t purchase a gun.
So if a cannabis consumer acquires a gun via a method that does not involve a background check, they can still legally own the gun.
That was an issue recently in Hawaii where local law enforcement sent warning letters to medical cannabis patients telling them that they had 30 days to turn in their firearms.
Fortunately, the law enforcement agency that sent the demand letter since backed off of the demand, but only after a lot of anxiety was experienced by gun owning medical cannabis patients in Hawaii.
As more states legalize cannabis for medical and/or adult use, this issue will pop up again and again.
Something must be done to change the situation.
How can current gun policy be changed and what can people do to help?
The only way that the current policy can be changed is if the Supreme Court rules in favor of cannabis consumers, or if Congress makes a change via legislation and it is signed into law.
As previously stated in this article, the Supreme Court has so far refused to hear the case, so that appears to be a dead end, at least for the time being.
The burden to make a change then falls on Congress, who so far has not embraced the issue, despite many members of Congress using gun rights as a lightning rod to fire up their constituents and generate campaign contributions.
If Congress (or hypothetically the president via a much harder route) were to make a successful push to deschedule cannabis, the issue would be resolved.
Or if Congress were to replace the 1968 law with a new one that did not include the same gun sale prohibition language, that would solve the matter as well.
If you want to help the situation, you need to contact your members of Congress and urge them to fix the current policy which is clearly discriminatory against cannabis consumers.
Point out that the number of legal states (medical and adult use) is increasing with every election cycle, and that the problem is not going away!