THE LAW OF MARIJUANA USE AND FIREARM POSSESSION IN CALIFORNIA

By C.D. Michel, Attorney at Law

March 1, 2021 – Cal NORML receives lots of questions about firearms possession and the changes to California law allowing the recreational use of marijuana. Be careful! Under California law, any use of marijuana triggers a prohibition on firearm ownership and/or possession, despite California state allowing its recreational use.

The following information has been prepared to assist Cal NORML members and supporters regarding this issue.

 

Federal Law Concerning Marijuana and Firearms

In May of 2020 the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) revised the federal form that must be completed to purchase a firearm – the Firearm Transaction Record (Form 4473). This form is used by all federally licensed firearm dealers, including California licensed firearm dealers, to process the sale or transfer of a firearm.

One of the changes to the 4473 form was a revision to question 21.e so that it now asks prospective firearm purchasers 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.

This language is based in part on the prohibition on firearm possession created under section 922(d)(3) of Title 18 of the United States Code. That section prohibits the sale or transfer of any firearm or ammunition to any person that is “an unlawful user of or addicted to any controlled substance,” which includes marijuana.

Similarly, section 922(g)(3) prohibits any person who is an unlawful user of or addicted to any controlled substance “to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition.”

Note that the form of question 21.e only asks if you are an unlawful user or addicted to marijuana in a present tense. In other words, the question is not asking if you were previously a user of or addicted to marijuana. This means that if you are not currently a “user of or addicted to” marijuana, you may truthfully answer “no” to question 21.e.

 

California Concerns Regarding Marijuana and Firearms

Even if a purchaser can truthfully answer no to 4473 form question 21.e, prior criminal convictions involving marijuana may still present problems for individuals seeking to purchase a firearm in California. For example, a felony conviction for a marijuana related offense is generally considered “a crime punishable by imprisonment for a term exceeding one year” according to section 922(d)(1). Individuals with such convictions must answer yes to question 21.b. on the 4473.[1] Even if the prospective firearm purchaser answers “no” to the question, the subsequent legally required background check would likely result in a denial of the attempt to purchase a firearm.

Also, even if an individual’s prior conviction for a marijuana-related offense is not a specific conviction that would prohibit firearm ownership under federal law, the California Department of Justice (“DOJ”) may nevertheless deny an individual if their criminal conviction is less than one year old.

This is also true if the individual was never actually been “convicted.” In those cases, DOJ will assume that the individual seeking to possess a firearm is “addicted” to marijuana within the meaning of the federal restriction. If an individual tries to purchase a firearm during this time, they will likely receive a denial letter from DOJ stating the following as the reason for the denial:

DRUGS: Any person addicted to the use of any narcotic drug. Federal Brady Act includes all drug related misdemeanor charges (except those involving alcohol/tobacco) where the arrest occurred within the past year and: 1) a conviction is present in the record; or 2) DOJ has attempted and is unable to obtain disposition information; or 3) the subject was placed on diversion and there is no indication that both the diversion was successfully completed and that the court has entered the appropriate orders expunging the record.

The above language appears to reflect a policy decision by the California DOJ as applied to arrests and/or convictions for drug-related offenses (including marijuana) occurring within the past year.

 

  • Federal Prohibitions As Applied to Medical Marijuana User Identification Cards

In 2016 the Ninth Circuit Court of Appeal issued an opinion in the case of Wilson v. Lynch, which challenged the federal statutes prohibiting the possession and acquisition of firearms by persons who use marijuana in accordance with their state’s laws.

In upholding the federal ban as constitutional, the court concluded that even though some marijuana users (such as those who use marijuana for medical purposes) are less likely to commit violent crimes, and perhaps less likely than other illegal drug users to interact with law enforcement officers or make illicit drug purchasers, such arguments “are not sufficient to overcome Congress’s reasonable conclusion in passing the law that the use of such substances raises the risk of irrational or unpredictable behavior with which gun use should not be associated.”

With that, the Court then looked to the prohibition as applied to individuals who had been issued a medical marijuana ID card as the plaintiff in Wilson had been. Although the Court noted that at no time was it alleged, let alone proven, that the plaintiff was actually an “unlawful user” (she had maintained throughout the case that she merely possessed the ID card), the Court still upheld the ban as constitutional. The Court reasoned that it was “eminently reasonable for federal regulators to assume that a registry cardholder is much more likely to be a marijuana user” over someone who does not possess such a card.

But question 21.e on the 4473 form does not ask if the purchaser possesses a medical marijuana card. Which means that if prospective firearm purchaser possesses such a card, and they do not actually “use” or are “addicted to” marijuana, they may truthfully answer “no” to the question. Nevertheless, if the firearm dealer is made aware the purchaser possesses such a card, ATF has instructed dealers that they may not sell or transfer a firearm to them because there would be “reasonable cause to believe” they are an unlawful user under federal law. Assuming the dealer is unaware, it is unclear how a federal background check would result in a denial at that point. But if the purchase occurs in a “Point of Contact” state like California, which means all firearm background checks in that state are processed through state databases in addition to federal databases, then it may be possible that the relevant state databases would result in the authorities being made aware of the person’s status as being in possession of a medical marijuana ID card. And as explained above, there may be other reasons for the denial, even though the person may not be a current user or other be addicted to marijuana.

[1] An individual with such a conviction may be able to truthfully answer “no” to question 21.b if they later obtained post-conviction relief that restored the person’s right to own and possess firearms. In California, this can generally be accomplished by reducing the felony conviction to a misdemeanor or obtaining a full and unconditional pardon from the governor. Individuals with such convictions should consult an attorney experienced in restoring firearm rights following felony convictions to determine what options may be available to them. For more information on restoring the right to possess a firearm, contact this law firm.
[2] See U.S. Department of Justice, Bureau of alcohol, Tobacco, Firearms and Explosives, Open Letter to All Federal Firearm Licensees, https://www.atf.gov/firearms/docs/open-letter/all-ffls-sept2011-open-letter-marijuana-medicinal-purposes/download (Sept. 21, 2011).

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