MDGA 2021 - MSI Testimony on SB190 and HB415 - Firearms – Right to Purchase, Possess, and Carry – Use of Medical Cannabis

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While different (HB 415 is more extensive), both bills provide that “a person may not be denied the right to purchase, possess, or carry a firearm under this title solely on the basis that the person” is authorized to use medical cannabis under title 13, subtitle 33 of the Health – General Article of Maryland law. Like similar bills in the past, MSI takes no position with respect to the merits of these bills. However, as before, we do wish to point out some legal realities for purposes of informing the debate on these bills.

Read SB190

Read HB415

With the recent changes in Maryland law concerning medical marijuana, see MD Code, Health - General, § 13-3304 et seq., and the push to legalize the use of marijuana in Maryland, a recurring issue is how such marijuana use would affect Second Amendment rights. The short answer is that it may well act to abrogate those rights by (1) barring a FFL from selling a firearm to such a user and (2), by making such a user a prohibited person under federal law.

1. As to FFLs, the pertinent statutory provision under federal law is 18 U.S.C. 922(d)(3), which provides:

(d) It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person--
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(3) is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802));

The ATF has issued a bulletin to all Federal Firearms Licensees that advises FFLs that “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.” See Open Letter to All Federal Firearms Licensees, Sept. 21, 2011, available at www.atf.gov/file/60211/download. That means that the FFL (or any other person with such knowledge) is prohibited from selling a firearm to such a person with a medical marijuana card. This ATF prohibition has been sustained in federal court. Wilson v. Lynch, 835 F.3d 1083, 1093 (9th Cir. 2016), cert. denied, 137 S.Ct. 1396 (2017).

Moreover, the latest version of Federal Form 4473 (attached hereto in relevant part) continues to expressly ask if the purchaser is “an unlawful user of . . . any controlled substance” and states in bold type: “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 statement or answer on Form 4473 is a federal felony under 18 U.S.C. 922(a)(6) (barring material misrepresentations “in connection with the acquisition” of a firearm). See Abramski v. United States, 134 S.Ct. 2259 (2014). A violation of Section 922(a)(6) is punishable by up to 10 years in prison. See 18 U.S.C. 924(a)(2).

2. As to becoming a disqualified person, under federal law, a user of marijuana is a disqualified person under 18 U.S.C. 922(g)(3) which states:

(g) It shall be unlawful for any person--
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(3) who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)); to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” (Emphasis added).

A violation of Section 922(d)(3) or Section 922(g)(3) is a federal felony, punishable with up to 10 years in prison. See 18 U.S.C. 924(a)(2). Both of these provisions define the term “unlawful user” by reference to the Controlled Substances Act, a federal law. A “controlled substance” under federal law specifically includes marijuana as marijuana is expressly classified as a Schedule I controlled substance under the Controlled Substances Act, 21 U.S.C. § 812(c). See also ATF regulations 27 C.F.R. § 478.11. Any use of marijuana makes a person an “unlawful user” under that federal law. Period.

Indeed, while the medical marijuana law of Maryland permits the use of marijuana under the circumstances specified in that law, the mere possession of marijuana in Maryland remains otherwise illegal in any other circumstance. See Robinson v. State, 451 Md. 94 (2017). That is so even though possession of small amounts of marijuana has also been decriminalized in Maryland. See Robinson, 451 Md. at 98 (“Simply put, decriminalization is not synonymous with legalization, and possession of marijuana remains unlawful.”). Under the Supremacy Clause of the Constitution,

Article VI, Clause 2, these federal law provisions cannot be abrogated by State law. And they cannot be simply ignored, if only because every purchaser of a firearm from a FFL must fill out ATF Form 4473. As noted above, a false statement in filling out that form is a felony.

It is important to note that for years Congress has adopted an appropriations rider that prohibits the Department of Justice from spending funds to “prevent” the “implementation” of State medical marijuana laws. See, e.g., Consolidated Appropriations Act, 2016, Pub. L. No. 114-113, § 542, 129 Stat. 2242, 2332-33 (2015) (also known as the Rohrabacher–Blumenauer amendment). McIntosh v. United States, 833 F.3d 1163 (9th Cir. 2016). That amendment has been reenacted since then as an appropriations rider. This amendment was renewed and signed into law on December 27, 2020, effective through September of 2021. Consolidated Appropriations Act, 2021, PL 116-260, 134 Stat 1182 §531 (Dec. 27, 2020). As it is only an appropriation provision that prohibits the expenditure of the appropriated funds for these enforcement purposes, the prohibition must be renewed annually to remain effective. The underlying conduct (possession of marijuana) remains a federal crime.

Specifically, the enforcement bar imposed by this rider only extends to the expenditure of funds for prosecutions that “prevent” the “implementation” of medical marijuana laws. See United States v. Nixon, 839 F.3d 885 (9th Cir. 2016) (holding that the appropriations rider does not impact the ability of a federal district court to restrict a defendant’s use of medical marijuana as a condition of probation). It does not address enforcement of federal gun laws, such as 18 U.S.C. §922, or ATF regulation of FFLs. See United States v. Bellamy, 682 Fed. Appx. 447 (6th Cir. 2017) (sustaining a felon-in-possession conviction under 18 U.S.C. § 922(g)(3) for possession of a gun while being a user of medical marijuana). Enforcement of such gun laws does not “prevent” the “implementation” of medical marijuana laws; it simply means that medical marijuana users may not possess or purchase firearms. See McIntosh, 833 F.3d at 1178 (the rider “prohibits the federal government only from preventing the implementation of those specific rules of state law that authorize the use, distribution, possession, or cultivation of medical marijuana”). Congress could restore funding tomorrow (or the appropriation rider could lapse) and the government could then prosecute individuals who committed offenses while the government lacked funding. See McIntosh, 833 F.3d at 1179 n.5. The federal government can prosecute such offenses for up to five years after they occur. See 18 U.S.C. § 3282.

The question the Committee should ask itself is whether passage of this bill might mislead medical marijuana users into thinking that they may use and possess medical marijuana without any fear of losing their gun rights. Under federal law, that is not an assurance that the State is in a position to accord. For example, on a practical level, this bill, if enacted into law, could easily fool something into expending time and resources to acquire an HQL from the State Police only to find that all that time and money was wasted when the dealer refuses to complete the sale because the person cannot honestly complete ATF Form 4473. That has actually happened. The HQL is useless.

Sincerely,

Mark W. Pennak
President, Maryland Shall Issue, Inc.


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