Cannabis is still a Schedule I Controlled Substance, meaning it has no federally accepted medical use. Until that changes, other federal laws have to toe the line, according to the Department of Justice.
Federal courts and the nation’s highest legal official both agree that marijuana will have to shed its status as a Schedule I controlled substance before its users can buy a gun.
But Alaska Sen. Lisa Murkowski hinted that talk on the subject isn’t over.
“With the change in administration coming in January further discussions on this issue will have to wait until a new team is installed in the Justice Department,” said Murkowski in a statement to the Journal.
During 2016, two pieces of judicial guidance have squashed objections to the Bureau of Alcohol, Tobacco, Firearms and Explosives rules that forbid marijuana users from buying a firearm without lying on their federal application.
ATFE Assistant Director of Enforcement Programs and Services Arthur Herbert sent a letter to federal firearms dealers on Sept. 21, 2011, expressly forbidding them from selling to marijuana users, both medical and recreational.
Letter from the Department of Justice
Cannabis is still a Schedule I Controlled Substance, meaning it has no federally accepted medical use. Until that changes, other federal laws have to toe the line, according to a Department of Justice letter sent to Murkowski.
However, the letter has a few winks and nods, mirroring the tone of other federal marijuana guidance that suggest the feds won’t devote too much time to enforcement.
Murkowski, who represents the state with the highest per capita gun ownership in the country, wanted the U.S. Department of Justice to reexamine the ATFE rules in a letter to U.S. Attorney General Loretta Lynch sent in March 2016.
On Oct. 27, 2016, Murkowski got a letter back from assistant attorney general Peter Kadzik saying the law is clear: no firearms purchases for marijuana users.
“The department is also committed to enforcing the Gun Control Act of 1968 (GCA), which inter alia, prohibits the sale of ‘any firearms or ammunition to any persons knowing or having reasonable cause to believe such a person…is an unlawful user of or addicted to any controlled substance,’” the letter reads. “By its explicit terms a controlled substance for the purposes of the GCA is defined by reference to the CSA (Controlled Substances Act), and marijuana remains an illegal, controlled substance under federal law.”
Murkowski said the Department of Justice talks from both sides of the federal mouth, crushing the ability of states to determine their own laws.
“The Justice Department’s response is disappointing and reflects a bias against firearm owners,” Murkowski wrote to the Journal. “On the one hand, the Justice Department expresses respect for state regulated markets in marijuana, yet on the other it continues to insist that one who uses marijuana consistent with state law can neither acquire nor possess a firearm.”
Kadzik’s letter has an undertone common in federal marijuana communications, both upholding federal law and downplaying the DOJ’s desire to actually enforce the law. Like the 2011 Cole Memorandum, which directs banks on marijuana-related actions, Kadzik’s letter hints that federal law enforcement doesn’t have all the time in the world to focus on marijuana laws in states where it is legal.
“Note that the department generally has not focused its limited resources on individuals who use of possess marijuana consistent with applicable state law,” Kadzik wrote.
Kadzik also pointed out that the U.S. Department of Justice doesn’t charge drug users with illegal firearms purchases very often, and doesn’t really know how many of those cases involved marijuana rather than some other controlled substance.
In Alaska, Kadzik writes there’s no record of it happening at all.
“The United States Attorney’s Office for the District of Alaska has not identified any cases where it filed charges under §922(d)(3) or §922(g)(3) in fiscal years 2015 or 2016 based upon an individual’s use of marijuana consistent with applicable state law,” Kadzik wrote.
Winks and nods aside, the DOJ’s letter clearly upholds the federal law for the second time in 2016.
The 9th U.S. Circuit Court of Appeals issued a decision on a Nevada case on Aug. 31 that upholds the ATFE guidance from 2011.
Cardholders meet the definition for “unlawful drug users,” according to the court decision.
The case concerned a Nevada woman, S. Rowan Wilson, who attempted to buy a gun but was prevented from doing so by the storeowner, who knew she had a medical marijuana card. Nevada is one of 29 states that have legalized medical or recreational marijuana.
The next administration
With the DOJ reply to Murkowski and the 9th Circuit Court decision, little wiggle room and little support seems to exist for marijuana users.
Murkowski hinted she will discuss the matter with the new administration, but so far the new DOJ scares marijuana legalization advocates.
President-elect Donald Trump nominated Jeff Sessions as attorney general, sending shockwaves throughout the developing marijuana industry. Sessions has an established anti-marijuana stance, once remarking “good people don’t smoke marijuana.”
The National Rifle Association has remained silent on the issue of marijuana users buying guns.
• DJ Summers is a reporter for the Alaskan Journal of Commerce and can be reached at daniel.summers@alaskajournal.com
