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The Federal Government is Using Drug Policy to Erode the Second Amendment

AP Photo/LM Otero

Is the ATF trying to ensure that no marijuana “user” can purchase a firearm from a licensed dealer?

One of the cardinal rules of government is that “no matter how much power government has, it always wants more.”  Thus it has been for two-and-a-quarter centuries:  a constant battle between individual liberty and the drive by the federal government to limit – that is, control—individual freedom.  

A favored tool by which the government achieves this control is its vast regulatory powersThe favored agency that Washington uses to control or limit the exercise of an individual’s right to possess a firearm, is the Bureau of Alcohol, Tobacco, Firearm and Explosives—“ATF” for short.  Recently, the ATF has teamed with the Drug Enforcement Administration (“DEA”) to hammer individuals’ Second Amendment rights in those states that have loosened laws against the personal use of marijuana.

Ever since the “War on Drugs” formally entered the national lexicon in the early 1970s, marijuana has maintained its position in Schedule I of what the government defines as a “controlled substance.” Thus, regardless of how marijuana is treated under the law of any state, under federal law it has no recognized medical benefit and is subject to the highest potential for abuse. While more than two dozen states have passed some form of marijuana legalization for medical or recreational use, Uncle Sam has not budged in how he views marijuana, and reserves the right to prosecute persons for possessing the substance, even though they may do so in compliance with the laws of the state in which they live.

Now, however, this legal dichotomy has created a new and troubling problem that pits the exercise of one’s Second Amendment rights against the fundamental notion of federalism. Simply stated, the problem is this:

If a person exercises their right under state law to obtain a card allowing them to purchase marijuana for medical purposes—even if they do not actually use that card and do not in fact use marijuana—does the fact that they have opted to have such a card, permit the federal government to deny them the right to purchase a firearm?

Both the ATF and DEA, of course, answer this question without any hesitance, in the affirmative. This back-handed slap at the Second Amendment by the government is accomplished by requiring any person seeking to purchase a firearm from a licensed dealer, to disclose on the form every purchaser must fill out in order to exercise their Second Amendment-guaranteed right (the notorious Form 4473), whether they are a “user” of any controlled substance, including marijuana. If the prospective purchase answers positively to this question, the firearms dealer cannot then allow the purchase to go forward.

ATF, which is responsible for administering the Form 4473, has gone two steps further in the government’s zeal to ensure no marijuana “user” can purchase a firearm from a licensed dealer. First, the agency makes it clear on the Form itself that possession of marijuana remains unlawful under federal law, regardless of its legal status under state law.  

Secondly, and more problematic are the instructions ATF gives to the firearms dealer: “…if you are aware that the potential transferee is in possession of a card authorizing the possession and use of marijuana under State law, then you have ‘reasonable cause to believe’ that the person is an unlawful user of a controlled substance,” and therefore “you may not transfer firearms or ammunition to the person, even if the person answered “no” to the question as to whether they are a “user” of marijuana.

To place into perspective what the government is doing here, consider that in 2016 there were some fourteen-and-a-half million individuals possessing concealed carry permits in the United States (nearly one million in my home state of Georgia). Under the government’s theory that if you simply have a license to use medicinal marijuana, then you are by that fact alone a “user”; the same could be said for a concealed-carry permit holder—if you have a concealed carry permit, you necessarily use that permit to carry a firearm at all times, even if you in fact chose not to at any particular time or all the time.  

Thus stands the power of the federal government to deny a person the right to exercise a right guaranteed by the Second Amendment, without any proof whatsoever that they have violated any federal law. And, so long as the Congress fails to stop this clear abuse of the Bill of Rights by the ATF (with the full backing of the DEA), many law-abiding citizens will continue to be denied a fundamental right expressly guaranteed by the Second Amendment.

Such is the regulatory power of the government and the corresponding constitutional lethargy of the Congress.  

Bob Barr represented Georgia’s 7th Congressional District from 1995-2003. He was the Libertarian Party nominee for President in 2008.

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