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Guest Column: Smoking pot and smoking guns

Legal marijuana use can impact firearm ownership

Increasing availability of legal recreational and medical marijuana in certain states creates conflict with federal firearm laws.  (Thinkstock)
Increasing availability of legal recreational and medical marijuana in certain states creates conflict with federal firearm laws. (Thinkstock)

Getting drunk and playing with a gun is a bad idea, as is taking too many pain pills and then deciding to go hunting.

But once you sober up or sleep it off, and are no longer considered a risk to yourself or others from those dumb ideas, you’ll still have the legal right to possess any firearms.

Our gun laws become funny, however, when marijuana becomes involved.

With more states legalizing medical and recreational cannabis, common sense says the same standards of thinking should apply for alcohol or prescription medicine: keep away from guns when you’re actively partaking/under the influence but once you’re thinking clearly, no problem.

The U.S. government takes a very different approach, however. Marijuana is considered a Schedule 1 narcotic, grouped with heroin; opiods and even cocaine are considered less problematic.

Marijuana’s Schedule 1 designation means that it’s unlawful for any person who is a user of any illegal controlled substance, anytime, to own a gun, anytime.

In September 2011, just before Colorado and Washington rolled out legal recreational marketplaces for marijuana, the ATF contacted all Federal Firearms Licensees (gun stores) advising them that if they ever become aware that a potential purchaser has a medical marijuana card, they must refuse the sale.

Five years later, the ATF added more verbiage to Form 4473, which every prospective gun owner must complete. Previously the form asked: “Are you an unlawful user of, or addicted to marijuana?” But now, in bold type, is this 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.”

A false answer is considered a felony, although this is usually only prosecuted in conjunction with more serious crimes.

Between 2008 and 2015 there were 254 false statement cases, amounting to a 0.04 percent prosecution rate. Given limited federal resources it is likely enforcement would be minimal if the offender’s worst crime is occasionally using pot.

Prosecution could be more likely, however, if that registered gun was to end up being used in a crime or the gun possessor is charged with other offenses.

Sarah Gervase, assistant general counsel for the National Rifle Association, recently addressed a group of Second Amendment lawyers, including myself, saying that she was unaware of any prosecution of a marijuana user solely for owning a firearm.

But case law is still evolving, as is seen with these cases.

• Nevada resident Rowan Wilson had a state medical marijuana card and wasn’t allowed to buy a gun. She took the matter to district court and the 9th Circuit of Appeals, which ruled that Wilson needed to surrender her medical marijuana card in order to make a gun purchase.

• In California, Kevin Dugan was charged in 2007 with illegally growing and selling marijuana and selling guns illegally. Though he had a legal license to sell firearms, authorities concluded that the activity became illegal when marijuana was involved. (An appellate court later ruled that an unlawful drug user need only to stop using drugs to regain their right to possess a gun.)

• A 75-year-old Illinois resident without criminal convictions was denied a gun purchase when his background check revealed he had a medical marijuana card.

• The State of Hawaii recently contacted all residents who owned guns and medical marijuana cards, directing them to surrender any guns if they wanted to continue the benefits of medical marijuana.

The bottom line is that it is illegal, at a federal level, to possess or purchase marijuana and also own a gun or to try to buy one. While rules for ownership of either product may soften in the future, treading lightly is the way to go. Currently, persons with a documented medical marijuana card should never attempt to purchase a gun unless they rescind that card and discontinue marijuana use around the time of purchase.

John M. Brangwin is a Washington state licensed attorney at the law firm of Woods & Brangwin, PLLC in Wenatchee. He assists clients with firearms denials and gun rights restoration.

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