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The federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) sent a letter this week to the Arkansas Department of Public Safety expressing its concerns about the state's "administration" of its Concealed Handgun Carry License (CHCL) in relation to medical marijuana users.
The concealed-handgun carry license is one of the recognized alternatives to a potential gun buyer's having to go through a federal background check.
Dated Monday, the letter was sent by Marianna Mitchem, chief of the Firearms and Explosives Industry Division. It was addressed to Rick Stallings, operations director for the Division of Arkansas Crime Information. In the letter, Mitchem details the ATF's "public safety concerns" surrounding Arkansas' issuing of CHCLs to people prohibited by federal law from possession of guns -- including medical marijuana users -- which "creates an unacceptable risk of placing firearms in the hands of prohibited persons."
Mitchem wrote that Arkansas law "may" allow prohibited medical marijuana users to obtain a concealed-handgun carry license, which would then let them purchase a gun from a federal firearms licensee by sidestepping the background check process "at the point of sale."
After exchanging text messages with a Department of Public Safety spokesperson throughout Wednesday seeking to arrange an interview with Stallings, the spokesperson sent an email at 3:50 p.m. that confirmed that the department had officially received the letter.
An attempt to arrange an interview with Mitchem in time for publication was also unsuccessful.
The ATF's letter said Arkansas had "previously been advised on the federal denial criteria concerning controlled substances."
According to the letter, in March 2023 the Federal Bureau of Investigation's Criminal Justice Information Services Division conducted an audit of Arkansas' background check alternate permit process. The audit found nothing "requiring corrective action." On April 29, a letter detailing that result was mailed to the Department of Public Safety. The letter included supplemental audit documents and a policy reference guide. Mitchem's letter noted that in the policy reference guide, federal denial criteria included "controlled substance user," which is defined as "an unlawful user of or addicted to any controlled substance."
Another paragraph in the letter details an "Open Letter" sent to all Federal Firearm Licensees in 2011 advising them that "regardless of whether his or her state has passed legislation authorizing marijuana use for medicinal purposes, marijuana is a Schedule 1 controlled substance, and therefore, a person who uses or is addicted to marijuana is an unlawful user of or addicted to a controlled substance and is prohibited by Federal law from possessing firearms and ammunition."
In October 2009, federal prosecutors received a memo from the Obama Administration encouraging them not to prosecute people who distribute marijuana for medical purposes under state law.
Five years ago, the Trump Administration issued a Marijuana Enforcement Memorandum that rescinded a 2013 memorandum and allowed federal prosecutors to decide how to prioritize enforcement of federal marijuana laws.
According to the National Conference of State Legislatures, Arkansas is among 38 states, three territories and the District of Columbia that allow the medical use of marijuana products. Arkansas made medical marijuana legal in 2016 via a voter approved amendment.
The Arkansas bill that initiated the ATF inquiry and the letter was signed into law on April 12 of this year.
Arkansas House Bill 1784, known as "To Amend the Law Concerning Concealed Handguns; to Protect the Rights of Marijuana Patients and Caregivers to Obtain a License to Carry a Concealed Handgun," was sponsored by state Rep. Aaron Pilkington, R-Knoxville.
The ATF letter quoted the section of the bill that dictated that the director of the state police is prohibited from "considering a person's status as a qualifying patient or caregiver" who uses medical marijuana when approving them for a concealed-handgun carry license. The act also "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.'"
Mitchem's letter posited two questions for Stallings that it requested written clarifications for regarding Arkansas law:
"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?" Mitchem closed the letter by stating that if the ATF didn't receive a response on the issues it had raised, ATF would reevaluate the Arkansas concealed-handgun carry license as an alternative permit and that ATF may determine an Arkansas concealed-handgun carry license no longer qualifies as an alternative to the background check requirement.
"It sounds like the ATF is going looking for a problem that's not there," Pilkington said. Pilkington, a fourth-term representative and vice president of strategic communications at ARCares, was travelling Wednesday and said he hadn't had a chance to personally review the letter when contacted.
Portions of the letter were read to him. The representative said he "consulted with multiple lawyers" to make sure that his bill "was drafted to make sure that it would work well within the legal framework from the federal government. So I'm a little shocked to see that I need to go back and review exactly what the letter says."
The ATF letter didn't mention one of the other revisions made by the bill. One paragraph of the bill reads "an applicant shall not be considered to chronically or habitually abuse a controlled substance based solely on the applicant's status as a qualifying patient or designated caregiver."
Pilkington said that "we're treating marijuana the same way we would treat opioids." "I believe that in other states they've had issues and they ruled that you can't discriminate on the basis of medication you're taking, because we use marijuana as a medication," he said. "... I don't believe someone needs to give up their rights to conceal-carry a handgun in Arkansas because they use medical marijuana as a medical treatment."
When shown a copy of the ATF letter sent to Stallings, Lyn Forrester, a manager of Don's Weaponry in North Little Rock, expressed reservations about what it could result in. "What concerns me is that if whoever this (letter) went to tells them to 'go pound sand, you don't tell the state what to do,'" said Forrester, who used to work for the Little Rock Police Department and Arkansas State Police, "then for the state of Arkansas, you may have the industry compliance part of the ATF come in here and say, 'You can no longer use this exemption.'"
The alternative permit exemption is item 29 on the Firearms Transactions Record, the document a prospective firearms purchaser must fill when they visit the gun store located at 4116 E Broadway St. Making sense of the seven-page form is "kind of like trying to follow the Bible" joked Forrester.
Forrester estimated that there were 35,000 previously filled out FTRs in storage at Don's Weaponry.
Among the "Yes" or "No" boxes one must check during the process, including whether the buyer is a "fugitive from justice" (item 21.f), is item 21.g, which asks if the buyer is "an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug or any other controlled substance." The box includes a warning stating that marijuana "remains unlawful" under federal law regardless of its legalization for medicinal or recreational purposes in a state. Forrester said that box does occasionally get checked "yes," resulting in a denied purchase.
He thought the Biden Administration would have that box removed.
"Because you can go out there and buy alcohol, beer and everything else and it's not held against you," Forrester said, who also mentioned various forms of medication, including Valium. "But if you get a marijuana card, it is."
Forrester doesn't know if losing the concealed-carry license exemption to the application process would be a good or bad outcome.
"The problem you have with this system is, right now, I don't care if you're in Alaska or all the way from Florida up to Maine and Hawaii, everybody's using this system," Forrester said, pointing to his countertop computer screen showing the Law Enforcement Enterprise Portal, or LEEP. It's the program that "every Walmart, every gun store, every Bass Pro" uses to submit background checks digitally. "The system will only take so much," Forrester noted. "On a Black Friday, a holiday season, it'll jam up. .... Do I know that for a fact, do I work on their IT? No. But I notice on busy retail days, we have a high probability of delays."
Print Headline: U.S.: Pot users ineligible to get firearms licensure