On September 21st, 2011 in an ATF Open Letter to all Federal Firearms Licensees, the BATFE announced that medical marijuana patients are to be excluded from possessing or owning firearms or ammunition. The authority for this BATFE determination is based on 18 U.S.C. Section 922(g)(3). This section states that any person who is an “unlawful user or addicted to any controlled substance” is not allowed to possess any firearms or ammunition.
Responsibility of FFLs
Additionally, 18 U.S.C. Section 922(d)(3), makes it unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable suspicion to believe that such a person is an unlawful user of or addicted to a controlled substance.
Patients who use medical marijuana, regardless of state law, should answer “yes” to question 11.e on ATF form 4473 and the FFL should NOT transfer the firearm or ammunition to them. Possession of a medical marijuana card is sufficient evidence to an FFL that there is “reasonable cause to believe” the potential transferee is prohibited from firearm and/or ammunition ownership pursuant to the above-referenced sections of Federal law.
Constitutional Issues with the BATFE’s Decision
While the BATFE’s proclamation is based on Federal law, there are still numerous constitutional flaws associated with this ban. First, there appears to be a Due Process violation of a medical marijuana patient’s rights. According to the Second Amendment to the Constitution and case law from the U.S. Supreme Court, ownership and possession of firearms is a fundamental right. Ironically, an individual who uses medical marijuana is not banned from exercising other constitutional rights, including free speech, religion, or freedom of the press.
Second, there is a potential lack of jurisdiction. If the firearm or ammunition is created within the state and then sold to a resident of that state, the Federal Government has no jurisdiction over the transaction as it does not trigger the Commerce Clause of the Constitution. It seems inevitable that a legal challenge will result from the BATFE’s ban on medical marijuana patients owning firearms and ammunition.