- Posted by Nedra Ruiz, Esq
- On December 30, 2017
- ATF, cannabis, gun law, guns, medical cannabis, personal rights, prohibition, recreational cannabis, second amendment
ATF Procedures Infringe Second Amendment Rights of Cannabis Users
Unfortunately, the legalization of cannabis in California in 2016 will not end federal Bureau of Alcohol, Tobacco, Firearms and Explosives regulations designed to prevent gun sales to cannabis users.
Every person who applies to purchase a firearm must (according to regulations implemented by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF)) submit a Form 4473. Question 11e on that form asks “are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug or any other controlled substance?” (Firearms Transaction Record Part I-Over-the-Counter Form 4473)
When states began to legalize cannabis for medicinal and recreational use, it was argued that a person who used cannabis in a state where such use was permitted by law could answer “No” to question 11e. Then in 2011, the ATF issued an Open Letter on the subject and opined that people who used cannabis, even those who used cannabis in states where their use was legal, had to answer ‘Yes” to Question 11e.
The ATF told gun sellers that if the gun sellers knew that the purchaser was using cannabis pursuant to state laws, the gun sellers should not transfer guns or ammunition to the purchasers (Open Letter to all Federal Firearms Licensees, dated Sept 21, 2011). To date, the courts have not found the ATF Open Letter to be an unconstitutional infringement and burden on the Second Amendment rights of cannabis users (Wilson v. Lynch (2016) 835 F.3d 1083).
In California, as in most states, guns cannot be legally purchased without valid identification. Identification and federal form 4473 are completed at the point of sale and the information is transmitted electronically to several information indices. A “Yes” answer to Question 11e would disqualify a prospective gun purchaser from being able to purchase a weapon.
Twenty-eight states and the District of Columbia now recognize the right of state citizens to use cannabis for recreation or for medicine. It is past time for the federal government to recognize the rights of all its citizens and end regulatory discrimination against cannabis users. Cannabis must be removed from the Controlled Substances Act. It is time to stop federal prohibition of cannabis. Americans have decided against prohibition; their laws and their government should reflect the choice of Americans. If Americans choose to use cannabis, their representative must enact laws that protect the Choice of the People. Now important federal rights are denied to people who use cannabis: the right to own a gun, the right to use federal housing, and federal education grants may all be denied to cannabis users. The federal courts have just begun to recognize the right to present state compliance as a defense to federal allegations of “marijuana crime.” If we want federal recognition of our right to use cannabis, we will have to petition our federal representatives; WE ARE GOING TO HAVE TO FIGHT FOR OUR RIGHTS.
We have to let our representatives know that we want federal protection of our right to use cannabis. We have to demand an end to arrest and prosecution for cannabis possession nationally. The right to use cannabis is a personal right, a right that every American enjoyed from the founding of our nation until federal racism led to its prohibition in 1937. Tell your federal representatives you want marijuana freedom. We have to tell our senators and congress people that we don’t want cannabis producers going to jail. We have to SPEAK TRUTH TO POWER.
The truth is we are all cannabis producers and users, or we know someone who is and WE, the American People, do not want users and growers of cannabis to go to jail any more. We don’t want cannabis users to be discriminated against because discrimination on the basis of cannabis use is irrational and profoundly unfree. We are that nation that asks, every time we sing the national anthem, Are we the land of the free? To better secure our freedom we must demand change from our law makers.
Nedra Ruiz has had the honor and privilege of working as a defense counsel in California since 1976. She believes in fighting for justice for the criminally accused and that defending the constitutional rights for anyone means fighting for the rights of all. Nedra is dedicated to activism and advocating the abolition of the prison industrial complex and the War on Drugs. She also believes in safe access, having supported both the legalization of cannabis and the possible decriminalization of psilocybin mushrooms in California. “We must fight to keep our freedoms and we must fight for more freedom.”
Featured Image by: Marcin Wichary
(opinions do not reflect that of the photographer)