Murkowski asks AG to review gun rules for marijuana users
Sen. Lisa Murkowski picked up an issue Lower 48 states with legal marijuana still haven’t resolved in a March 2 letter to U.S. Attorney General Loretta Lynch.
The letter asks Lynch to reexamine federal gun regulations inconsistent with state laws where marijuana is legal. Along with banking — federal laws prohibit bank involvement with marijuana businesses — gun ownership exemplifies a schism between federal and state laws concerning cannabis.
A 2011 directive from the Bureau of Alcohol, Tobacco, Firearms, and Explosives specifically prohibits federal firearms dealers from selling to marijuana users, both medical and recreational. Private gun sales between individuals, which are not federally controlled, do not have this restriction.
As of December 2015, Alaska had 730 federal firearms license holders, about one for every 1,000 residents. According to a Columbia University study released in June 2015, Alaska also has the highest per capita gun ownership in the nation; 61.7 percent of Alaskans own one or more firearms.
Alaska has some of the least restrictive gun laws in the nation with an entrenched hunting culture both for recreation and subsistence purposes. Alaskans are not required to have a concealed carry permit so long as they are a legal owner under state and federal law, but they must apply for a concealed carry permit if they wish to carry in states where Alaska has reciprocity agreements.
Alaska also has more than 1,000 medical marijuana cardholders. This number, however, is an inaccurate metric for marijuana usage, as state laws have not allowed for marijuana cultivation or distribution until recreational use was approved by a voter initiative in 2014.
According to a 2014 Washington Post report, 25 percent of 18- to 25-year-olds and 11 percent of those older than 25 in Alaska consumed marijuana within the past month.
Murkowski didn’t support the voter initiative, which legalized recreational marijuana in Alaska in 2014, but she views the inconsistency as a state’s rights and safety issue.
“If the cultivation, manufacture, and use of marijuana and marijuana products is to be lawful in Alaska,” the letter reads, “it must be undertaken consistent with the regulatory scheme, and proactive efforts should be taken to reconcile inconsistent federal laws with more permissive state laws.”
A federal letter to states where marijuana is legal, called the Cole Memorandum, gives some guidance, but does not address firearm possession.
Murkowski refers to the letter from ATFE Assistant Director of Enforcement Programs and Services Arthur Herbert that was distributed to federal firearms dealers on Sept. 21, 2011.
The Herbert letter, Murkowski notes, specifically denies firearms possession to medical marijuana cardholders.
“Any person who uses or is addicted to marijuana, regardless of whether his or her state has passed legislation authorizing marijuana use for medicinal purposes, is an unlawful user of or addicted to a controlled substance, and is prohibited by federal law from possessing firearms or ammunition,” Herbert’s directive reads.
The bureau requires federal firearms license dealers to have their customers fill out Form 4473. This tracks address, date of birth, government-issued photo ID, and a federal background check, along with recording the serial number of the firearm being purchased.
One question asks: “Are you an unlawful user of, or addicted to, marijuana, or any depressant, stimulant, narcotic drug or any other controlled substance?”
Lying on a Form 4473 is a federal felony, punishable by up to five years in prison. Most individual firearms sellers are not federally licensed, but gun dealers and sporting goods stores are.
Murkowski fears lawful marijuana users will turn into a class of criminals by answering “no” on the portion of federal firearms licensing forms.
Gun buyers with medical marijuana cards, or even recreational users, would be opening themselves to criminal charges by providing a false statement in order to buy the gun.
Murkowski wants the federal government to revisit the rules.
“It is my judgment that denying Americans the personal Second Amendment right to possess firearms as articulated by the Supreme Court in (District of Columbia v. Heller) for mere use of marijuana pursuant to state law is arbitrarily overbroad and should be narrowed.”
Murkowski’s office has not yet received a reply from the U.S. Attorney General’s office.
Other states have battled with medical and recreational marijuana usage’s incompatibility with federal gun laws, which the National Organization for Reform of Marijuana Laws has considered one of the top priorities for lawmakers post-legalization.
So far, none have successfully changed the effects of the ATFE’s cannabis usage prohibition, though some have changed state laws.
In Montana, which legalized medical marijuana in 2004, state Attorney General Steve Bullock and the Montana congressional delegation roundly objected to the 2011 Herbert letter.
Montana’s legislators looked for a fix. In 2014, Sen. John Walsh, D-Mont., tried to pass a bill that would bar any federal funds from being used to prosecute gun owners based on their status as medical cardholders. The bill failed.
In Colorado, the Colorado Campaign for Equal Gun Rights tried to put a measure onto the November 2016 ballot that would bar Colorado sheriffs from refusing concealed carry permits to marijuana users. The campaign failed to collect the necessary signatures to put the issue onto the 2016 ballot.
In 2013, Illinois passed a law allowing medical marijuana users to possess firearms, though a couple years later the state said it inadvertently sent out revocation letters to a few firearms permit holders with medical marijuana cards.
In Willis v. Winters, a 2011 Oregon Supreme Court case, it was ruled that the “state law requires sheriffs to issue concealed gun licenses without regard to whether the applicants use medical marijuana.”
This ruling means Oregon sheriffs are required to issue concealed carry permits to medical marijuana users, and the U.S. Supreme Court declined to hear the state’s appeal in what advocates celebrated as a victory for gun rights and medical marijuana users.
DJ Summers can be reached at [email protected].