The ATF has identified a new “public safety concern” in the Natural State; gun owners with medical marijuana cards.
This week Marianna Mitchem, the ATF’s chief of the Firearms and Explosives Industry Division in the Office of Enforcement Programs and Services sent a letter to Arkansas Operations Director of Division of Arkansas Crime Information Rick Stallings informing him that the agency takes issue with the fact that active concealed carry licenses in the state can be used as an alternative to a NICS check when purchasing firearms at retail.
What’s the problem? Well, the state of Arkansas doesn’t preclude those with medical marijuana cards from obtaining a carry license, which means those users have a way to purchase a gun without having to fill out Form 4473 and attest to being an “unlawful” user of drugs, which would prohibit them from completing the purchase under existing federal law.
In the letter, Mitchem says is the ATF is “concerned that the issuance of CHCLs to individuals who are prohibited by Federal law from possession of firearms creates an unacceptable risk of placing firearms in the hands of prohibited persons.”
On April 12, 2023, Arkansas House Bill 1784, “An Act to Amend the Law Concerning Concealed Handguns to Protect the Rights of Medical Marijuana Patients and Caregivers to Obtain a License to Carry a Concealed Handgun and for Other Purposes,” was signed into law. The enactment of House Bill 1784 amended Ark. Code Ann. § 5-73-309, concerning the requirements for obtaining a concealed carry license, to read that a license shall be issued if, among other things, the applicant is not prohibited from receiving, possessing, or transporting a firearm by any Federal, state, or local law, but provided that “[t]he director shall not consider a person’s status as a qualifying patient or designated caregiver under the Arkansas Medical Marijuana Amendment of 2016, Arkansas Constitution, Amendment 98, § 2, in determining whether an applicant is eligible to be issued a license to carry a concealed handgun under this subchapter;” Ark. Code Ann. § 5-73-309(b). In addition to prohibiting the Director of the Division of Arkansas State Police from considering a person’s status as a qualifying patient or caregiver, the act further prohibits the Department of Health from disclosing the “identity of a person who has been issued a registry identification card to the Division of Arkansas State Police for the purpose of facilitating a criminal history record check or any other background check related to the issuance of a license to carry a concealed handgun under § 5-73-301;” Ark. Code Ann. § 20-56-308(b).
Based on the potential implications of House Bill 1784, ATF respectfully requests written clarification of Arkansas law and policy for the following issues within 30 days of your receipt of this letter:
1) How does Arkansas ensure all current CHCL holders and applicants are not “controlled substance users,” including users of medicinal marijuana?
2) Ark. Code Ann. § 20-56-308(b) restricts the Director of the Division of Arkansas State Police from considering a person’s status as a medical marijuana patient in determining eligibility for a CHCL. How does Arkansas reconcile this provision of state law with the federal prohibition on firearms possession by individuals who are unlawful users of or addicted to any Title 21 controlled substance which includes marijuana?
If Arkansas law does not require authorized State officials to confirm that an individual is not a “controlled substance user,” then federally prohibited marijuana users may obtain firearms using the CHCL. If ATF does not receive a response to the above issues, ATF will reevaluate the Arkansas CHCL as an alternative permit. As a result of that process, ATF may determine an Arkansas CHCL no longer qualifies as an alternate to the NICS check requirement.
The ATF has basically told Arkansas to either screen and reject medical marijuana card holders from obtaining a carry license or else lose the ability to use a carry license as a substitute for a NICS check, though how the state is supposed to “ensure” that all concealed carry holders aren’t “controlled substance users” in general is beyond me. Does the ATF believe that every concealed carry applicant should have to pass a drug screen as part of the application process? Under federal law, gun buyers are basically on the honor system when it comes to honestly and accurately filling out a Form 4473, so it’s not like DOJ or ATF “ensures” that every retail purchaser of a firearm is drug-free.
The easiest way to resolve this issue is at the federal level. The Gun Rights and Marijuana Act would allow for individuals in states that have legalized or decriminalized marijuana use to purchase and possess firearms without fear of federal prosecution. That language has been included in the latest version of the Secure and Fair Enforcement Banking Act, which is currently pending in the Senate, but given the absolute chaos in Congress who knows when and if that bill will ever get to Biden’s desk… or whether he’d sign anything that would benefit gun owners around the country.
The other avenue to fix this issue is the legal system, and on Thursday a three-judge panel in the Eleventh Circuit heard oral arguments in a challenge to the current prohibition on “unlawful” users of drugs possessing guns brought by medical marijuana patients in Florida.
The Florida plaintiffs, who originally sued alongside then-Florida Agriculture Commissioner Nikki Fried, a Democrat, before she left office, argued that keeping guns from users of medical marijuana in states that have authorized it is not consistent with historical tradition of firearm regulation.
Florida legalized medical marijuana in 2016. While the drug remains illegal at the federal level, the plaintiffs noted the U.S. Department of Justice is barred under the Rohrabacher-Farr Amendment from using funds to interfere with state medical marijuana programs, including to prosecute individuals.
Justice Department attorney Steven Hazel argued that barring drug users from having guns was akin to historical laws dating back to the nation’s founding prohibiting mentally ill people and alcoholics from possessing guns.
[Plaintiffs attorney William] Hall countered that even if state-authorized medical marijuana use was deemed a crime, historical precedent does not support disarming people when they were sober.
“That’s not a bridge too far,” he said. “That’s about 10 bridges too far.”
The Fifth Circuit has already determined that the current federal law violates the Second Amendment rights of citizens, though laws forbidding gun use and possession while under the influence were deemed acceptable. The Eleventh Circuit panel appeared split on the issue, but either way the question is going to be kicked up to the Supreme Court before long. Hopefully there are at least five justices who’ll agree with the Fifth Circuit’s determination and medical marijuana patients will no longer have to choose between their health and their right to self-defense, but in the meantime the ATF is going to do everything it can to prevent cancer patients, those suffering from Parkinson’s, and a host of other ailments from exercising their Second Amendment rights if they’re using marijuana as treatment.