Last week, Marijuana Moment reported on a new Arkansas law that would protect medical cannabis users’ gun rights. This law is the most recent in a series of attempts by states to get around federal gun control laws that prohibit cannabis users from owning or buying guns. It won’t work.
I’ve written extensively on the federal laws at issue (see links to my posts below). Arkansas is trying to protect its medical cannabis users by prohibiting state agencies from considering marijuana use when determining if someone is entitled to carry a concealed handgun. Moreover, the state won’t deem someone a habitual controlled substance user just based on their status as a medical marijuana user. The new law also prohibits the state health department from disclosing a person who has a medical cannabis card to the state police for doing concealed handgun firearm checks.
There’s more to the law than that, but at this point it probably doesn’t make a huge difference. The law is destined to fail, and we have precedent. As I described here, the State of Missouri tried to similarly protect cannabis users’ gun rights and failed spectacularly. When the state’s law passed, the federal government sued and handily defeated Missouri’s similar law. I’d be shocked if we didn’t see a similar outcome in this gun rights example.
Additionally, the fact remains that this won’t – and cannot – change federal firearm licensing (FFL) requirements. Specifically, FFL holders must force gun purchasers to complete form ATF 4473, and answer “Yes” or “No” to the following question:
Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?
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.
If an FFL holder sold a gun to someone who answered “Yes” to that question, the FFL holder could lose its license AND even possibly face federal criminal liability. Would any law abiding FFL holder in Arkansas really roll the dice here? I doubt it. Keep in mind that the federal government was very quick to remind FFL holders of these requirements when, for example, Michigan and Minnesota legalized cannabis. The federal government doesn’t like cannabis, and certain doesn’t like the idea of cannabis users’ gun rights.
So here are my predictions:
ATF or some other agency issues a “reminder” memo to FFL licensees (as in Michigan) or the public at large (as in Minnesota) in the coming weeks,
the federal government tries to intervene, possibly with a lawsuit, but
in a few years, all of this is mooted as more and more courts, and possibly the U.S. Supreme Court, finds the federal law at play unconstitutional. (As an aside, please see my below points for why I think the federal laws at issue are and will be held unconstitutional, as has already happened in many lower courts.)
That all said, just because something may be held unconstitutional doesn’t mean that the laws are not currently “on the books” and that the federal government will enforce them. It happens today, and the government could find ways to keep it up even after courts strike down the unconstitutional laws.
For some of my other posts on cannabis gun rights, please see this list:
Feds May Restrict Cannabis Users’ Gun Rights Even After Changes in Law
ATF Clings to Cannabis Gun Rights Restrictions
Yet Another Federal Court Decision on Cannabis Gun Rights
State Cannabis Gun Right Laws Won’t Work
A Cannabis Gun Control Circuit Split is Coming
Will Gun Control Laws Soften for Cannabis Users?
The post Arkansas Passed a Cannabis Gun Rights Law. It Won’t Work. appeared first on Harris Bricken Sliwoski LLP.
