View Full Version : BATFE Form 4473 vs. CO Amendment 64
james_bond_007
11-07-2012, 10:33
So how does CO Amendment 64 affect one's answer to question 11e on BATFE's form 4473 ?
"Are you an unlawful user of, or addicted to, marijuana or any depressant..."
Fed law USC 18.922(d)(3) :
"(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 - (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));"
Note: Form 4473 says "user", in the present tense...as in currently using. It does not say "has used", "used", "will use.
Note: USC 18 922(d)(3) applies to FFLs (and ammo sellers, like Walmart) and says they cannot transfer a gun or sell ammo to MJ "users".
What responsibility do FFLs and ammo sellers have to ensure they are not selling/transferring to a MJ user, from a Federal perspective? ?
james_bond_007
11-07-2012, 10:43
Further the ATF attempted to clarify any confusion with this memo that says "No Guns" if using marijuana, we don't care what the states allow."
http://www.atf.gov/press/releases/2011/09/092611-atf-open-letter-to-all-ffls-marijuana-for-medicinal-purposes.pdf
The CO medical MJ (and soon to be many other Colorado residents over 21 years ) users are lawful, per CO law.
It must be very confusing to someone filling out the form to say to themselves "Hmmm, are they asking about State or Federal law ?"
Yes, it is a Federal form, but I don't think most think that far ahead.
I would think that most MJ users would say "NO, I an not an UNLAWFUL user" , as they would honestly believe (not trying to lie) that since MJ is legal in CO, they are lawful, and have truthfully answered the question.
...or are firearms owners held to a higher standard than other citizens expected to know this distinction ?
What are firearm owners expected to do (legally) with their firearms and ammo if they wish to (legally) use marijuana * ?
Can they give "possession" of them to a friend, smoke a joint, and then go and retrieve them ?
After all, since they did not possess them while "using", and they are not currently "using" when they retrieved them, they didn't violate the letter of the law.
Does "possession" also mean "access to" ?
EX: Say my son lives with me and owns firearms and ammo. I use MJ and live in the same house. I do not own/possess them. Am I "OK" with the law?
Do I break the law if I touch one of them? or know the combo to the safe they are stored in?
*I know some of us might think, "Who's going to check? I'll just do it and keep my mouth shut." While this can be effective, I'm asking this from a legal perspective...
It comes down to the ATFs definition of what a "user" is ....(IMHO)
ruthabagah
11-07-2012, 10:44
That's a good question: I think that at this time Federal Law will trump state Law.
kidicarus13
11-07-2012, 10:47
So how does CO Amendment 64 affect one's answer to question 11e on BATFE's form 4473 ?
"Are you an unlawful user of, or addicted to, marijuana or any depressant..."
Fed law USC 18.922(d)(3) :
Note: Form 4473 says "user", in the present tense...as in currently using. It does not say "has used", "used", "will use.
Note: USC 18 922(d)(3) applies to FFLs (and ammo sellers, like Walmart) and says they cannot transfer a gun or sell ammo to MJ "users".
What responsibility do FFLs and ammo sellers have to ensure they are not selling/transferring to a MJ user, from a Federal perspective? ?
You're overthinking it, mark NO and move to the next question.
You're overthinking it, mark NO and move to the next question.
A wise man
Great-Kazoo
11-07-2012, 10:55
A wise man
2 wise men.
Basically what I just told a bunch of my pot head friends this morning: Weed or guns, you can't have both.
I wonder, if the ATF finds out, how many businesses will be prosecuted if they sell firearms to pot heads? Selfish dope smokers (I don't mean that in a derogatory way, mind you) aren't hurting themselves nearly as much as they would be hurting FFLs. [Bang]
james_bond_007
11-07-2012, 11:14
...Selfish dope smokers (I don't mean that in a derogatory way, mind you) ...
For the definition of an oxymoron, see the above quote...[ROFL3]
For the definition of an oxymoron, see the above quote...[ROFL3]
"Pay attention 007... This is your Q branch issued Sarcasm Detector, you scan text here, and record audio here and it will detect levels of sarcasm." [Coffee]
james_bond_007
11-07-2012, 11:23
You're overthinking it, mark NO and move to the next question.
There is no over-thinking on my part. I won't be utilizing any "benefits" of Amendment 64. I was just asking some of the "obvious" questions that will come up.
My point was that it will cause a bunch of confusion and possible liability if not understood correctly by:
1) Firearms Sellers
2) Firearms Buyers
3) Citizens selling firearms FTF in CO
4) Citizens buying their 1st firearm]
etc.
I see many Sale ads here on our forum that state
"No sales to Felons or Criminals"
They now needs to say
"No sales to Felons, Criminals, or Potheads"
I expect the ATF to come out with another "MEMO" soon.
Stay tuned ....
ANADRILL
11-07-2012, 11:24
My take on this is that Amendment 64 was added to bring out more leftist voters to the polls, also the gobernment now can come in with ultimatums, forcing us to give up our arms if we live in a state that has legal Marijuana. As stated before, they have no way of tracking who is or isn't using it, only a yes or no the yellow form. This in my opinion was a calculated move, and it's close to working.
james_bond_007
11-07-2012, 11:25
"Pay attention 007... This is your Q branch issued Sarcasm Detector, you scan text here, and record audio here and it will detect levels of sarcasm." [Coffee]
Glad you enjoyed it. It was only meant to invite a smile ...[Beer]
james_bond_007
11-07-2012, 11:27
... This in my opinion was a calculated move, and it's close to working.
I'm interested in your opinion. Please elaborate.
4473 is a federal document. And pot is illegal still at the federal level.
My take on this is that Amendment 64 was added to bring out more leftist voters to the polls, also the gobernment now can come in with ultimatums, forcing us to give up our arms if we live in a state that has legal Marijuana. As stated before, they have no way of tracking who is or isn't using it, only a yes or no the yellow form. This in my opinion was a calculated move, and it's close to working.
Interesting perspective, but to that I just say "Molon Labe!" [AR15]
ANADRILL
11-07-2012, 11:34
Not much else to say, it legalizes pot, which conflicts with federal law, the feds have no way of tracking who uses it, thus they mandate a state wide ban on firearms or the states forfiet federal funding, which will not happen. Being this is a blue state it will be pushed through. It will be either death or the camps for those who oppose the new laws......:(
ANADRILL
11-07-2012, 11:38
Now that everyone is smoking, it will be hard for the smokers to find work, thus increasing the unemployment in the state, as buisnesses will not lax drug testing. Hair sampling is the new norm, so even if you just try it when it becomes "legal", you will still test positive, and be refused to work.
BPTactical
11-07-2012, 11:41
Regardless of what the State law or State Constitution may say, firearms are regulated at the Federal level.
As long as the Ganj is prohibited federally then you are in violation of Federal law.
Very clear cut.
While I get the impetus of 64 it is a symbolic win only. The Fed will withhold funds and have a boot on Hicks neck.
Not much else to say, it legalizes pot, which conflicts with federal law, the feds have no way of tracking who uses it, thus they mandate a state wide ban on firearms or the states forfiet federal funding, which will not happen. Being this is a blue state it will be pushed through. It will be either death or the camps for those who oppose the new laws......:(
"I'd rather die standing up than live on my knees."
james_bond_007
11-07-2012, 11:48
Now that everyone is smoking, it will be hard for the smokers to find work, thus increasing the unemployment in the state, as businesses will not lax drug testing. Hair sampling is the new norm, so even if you just try it when it becomes "legal", you will still test positive, and be refused to work.
Interesting point, on the drug testing.
Employers can pretty much make whatever entry requirements they want for their companies.
With MJ being legal or not, they can bar Amendment 64 users (or perhaps even Lance Armstrong) from employment if they fail the drug test.
Sounds like the making of a proposed Amendment 64 1/2.
On the next ballot you may see:
"Please vote YES or NO: Colorado employers should no longer be allowed to screen for MJ usage as a condition for employment." [Rant2]
james_bond_007
11-07-2012, 12:00
...Very clear cut.
While I agree with you that it SHOULD be clear cut, AND that when considering it from a legal (fed vs. state form) perspective it IS pretty clear, I'll ask:
Is everyone that buys or sells guns a "lawyer" or "sufficiently familiar" with the laws and differences in state law vs. federal law (the question is ARE they familiar, not SHOULD THEY BE familiar)?
I don't think so...and that is where I think some confusion and perhaps confrontation will occur.
EX: Even our good friend at Gunsmoke, an FFL, had trouble interpreting the definition of "buyer" on form 4473. (Is it one that is in the PROCESS of buying or is it one that has ALREADY BOUGHT...)
Great-Kazoo
11-07-2012, 12:26
"I'd rather die standing up than live on my knees."
While i am sympathetic to the Motto. I highly doubt anyone will be staying awake 24/7. Most raids do not happen while you are bright eyed & bushy tailed. They happen between 2-5am, when you're snug in bed wearing your grranimals 1pc pj's. [ROFL3]
Very interesting question, but let me add a different flavor to the discussion. If we can ignore federal law and create our own at the state level that trump the federal law does that mean we could start a petition to ignore the federal fire arm laws/bans and create our own at the state level? Just putting it out there and would like to see what everyone thought.
BPTactical
11-07-2012, 12:42
Very interesting question, but let me add a different flavor to the discussion. If we can ignore federal law and create our own at the state level that trump the federal law does that mean we could start a petition to ignore the federal fire arm laws/bans and create our own at the state level? Just putting it out there and would like to see what everyone thought.
Similar has been tried by manufacturers in Tennessee and Montana. Both claimed firearms manufactured and sold/kept instate are exempt from Federal regs.
BATFE raided said manufacturers very shortly thereafter and shut down same.
Don't have time to read the whole thread, but the Federal form is asking questions about purchasing a firearm, specifically from a FFL dealer. It does not address the legality of ownership, or possession.
Similarly, you can not legally get married if you are drunk or otherwise intoxicated because that is in direct violation of one of the four parts of a legal contract. That does not mean that you can not engage in the act of being married while drunk or otherwise intoxicated. Two separate issues. You don't have to chose one or the other.
Stating that you are not an unauthorized user of illegal drugs at the time of purchase, is not a declaration that you haven't been a user in the past, nor will be in the future.
james_bond_007
11-07-2012, 18:02
... Hair sampling is the new norm, ...
From http://en.wikipedia.org/wiki/Drug_test#Hair_drug_testing
"Hair drug testing is a method that can detect drug use over a much longer period of time,[/URL] and is often used for highly safety-critical positions where there is zero tolerance of illegal drug use. (http://en.wikipedia.org/wiki/Drug_test#cite_note-Your_hair_tells_all-23) Standard hair follicle screen covers a period of 30 to 90 days. The growth of hair is usually at the rate of 0.5 inches per month. The hair sample is cut close to the scalp and 80 to 120 strands of hair are needed for the test. In the absence of hair on the head, body hair can be used as an acceptable substitute.[URL="http://en.wikipedia.org/wiki/Drug_test#cite_note-Your_hair_tells_all-23"]Even if the person being tested has a shaved head, hair can also be taken from almost any other area of the body. This includes facial hair, the underarms, arms, and legs or even pubic hair. Because body hair grows at a different rate than head hair, the timeframe changes, with scientists estimating that drug use can be detected in body hair for up to 12 months. "
Edit: Raise your hand if you've ever had a hair sample drug test. Hair sample testing is NOT the norm. I don't even know of anyone whom has had their hair tested; yet I've been warned about it since I was a kid in the 80's.
spqrzilla
11-07-2012, 18:32
I had a hair sample drug test for a Federal job application once. About a decade ago I think.
Busta Prima
11-07-2012, 19:00
You're overthinking it, mark NO and move to the next question.
+1
Simple answer, do away with form 4473.
I'd be more concerned with an alcoholic neighbor (legal), then a pothead neighbor (illegal).
I work at a "newish" gun shop in Denver called Shooter Ready. In the past few months we have had a couple of MMJ card holders who have willingly disclosed that they are cannabis users at which point we can no longer proceed with the sale of the firearm.
In one case, the gentleman disclosed his "medical" status after his 4473 had been approved by CBI but before he had paid for the gun so we couldn't legally accept payment nor release the gun.
Yes, it is possible that this person may have been an ATF agent posing as a buyer but we are not willing to jeopardize our FFL to find out. It is best to lose the sale than the lose our license.
Hair sampling is the new norm...
At my age, with as little hair as I have left, I don't want to part with any of of it. [ROFL2]
buckshotbarlow
11-07-2012, 19:49
i don't know man, i need some doritos and brownies. Anyone want to make a run to tacobell?
A wise man
We (our class) got to talk to (I forgot both their names, but they were nice women) a couple ATF agents from here in Colorado last week. This question came up, and they said "it's still illegal on a federal level, and a federal crime to lie on the form, or sell to someone you know smokes marajuana." They weren't smiling when they said this either. [Beer]
Great-Kazoo
11-07-2012, 20:39
At my age, with as little hair as I have left, I don't want to part with any of of it. [ROFL2]
You have enough, you can part it!. Lucky guy.
james_bond_007
11-07-2012, 20:58
...Raise your hand if you've ever had a hair sample drug test...
http://www.nccscougar.org/rpaola/raise-hand.jpg
Certain types of "government clearance" positions require it.
As well as full financial disclosures, background investigations of family and in-laws, friends and acquaintances for many years, etc.
It is NOT just something you see in the movies.
...enough said.
james_bond_007
11-07-2012, 21:06
Simple answer, do away with form 4473.
I'd be more concerned with an alcoholic neighbor (legal), then a pothead neighbor (illegal).
I'd be concerned with BOTH...
Recipe for Federal Penn Cocktail:
Take
1 drink too many (or 1 joint too many)
1 firearms owner
Add a bad temper and and some innocent people
Mix together well.
Chase with a tall police officer.
Pour into a prison cell.
Wait 5-10 years.
or sell to someone you know smokes marajuana."
I'd like to see a law that says this. A person to person transaction is not restricted by the 4473 form. What are the restrictions for OWNING a firearm again? In Colorado I believe it is no felony charges and no domestic violence.
It is NOT just something you see in the movies.
...enough said.
Not enough said. Certain jobs with the government that require a clearance have very strict requirements. What about every other job in the US? A hair test is NOT the norm.
OneGuy67
11-07-2012, 22:18
Every job I've had since the age of 18 has required urine and/or blood tests as part of pre-employment and periodic tests throughout the employment. They are the norm for many jobs.
Tis agin duh law to sell to a "Prohibited Person." The 4473 makes the dealer ask the question. The reason they have to ask the question is so that they will know who the "Prohibited Persons" are.
If you knowingly sale to a "Prohibited Person" and the ATF can prove it, you are screwed, 4473 or no 4473 (and maybe even if they can't prove knowingly, as I don't think that is in the law).
They have a history of Agents posing as a "Prohibited Person." Tis not entrapment, if they don't ask you to do it....IOW, if you have a gun for sale, and they show up and buy it.
Every job I've had since the age of 18 has required urine and/or blood tests as part of pre-employment and periodic tests throughout the employment. They are the norm for many jobs.
Me too, but those aren't hair tests.
Tis agin duh law to sell to a "Prohibited Person." The 4473 makes the dealer ask the question. The reason they have to ask the question is so that they will know who the "Prohibited Persons" are.
If you knowingly sale to a "Prohibited Person" and the ATF can prove it, you are screwed, 4473 or no 4473 (and maybe even if they can't prove knowingly, as I don't think that is in the law).
They have a history of Agents posing as a "Prohibited Person." Tis not entrapment, if they don't ask you to do it....IOW, if you have a gun for sale, and they show up and buy it.
Being a drug user, or alcohol drinker, does not make you a prohibited person, yet both appear on the 4473. You have to be at least 21 to purchase a pistol from an FFL. Does that mean an 18, 19, or 20 year-old is a prohibited person when it comes to buying a pistol from a private party?
Certain types of "government clearance" positions require it.
As well as full financial disclosures, background investigations of family and in-laws, friends and acquaintances for many years, etc.
It is NOT just something you see in the movies.
...enough said.
No, they draw blood, even for a simple MRPT clearances. Hair testing is not accureate and easily refuted in court. Please do not use wikipedia as a source as most of it is made up.
trlcavscout
11-07-2012, 23:39
Edit: Raise your hand if you've ever had a hair sample drug test. Hair sample testing is NOT the norm. I don't even know of anyone whom has had their hair tested; yet I've been warned about it since I was a kid in the 80's.
I have only had it done once in CO, every job I had in Las Vegas required it.
james_bond_007
11-08-2012, 00:31
No, they draw blood, even for a simple MRPT clearances. Hair testing is not accureate and easily refuted in court. Please do not use wikipedia as a source as most of it is made up.
Personal experience...Wikipedia not involved.
Blood and urine were also taken in conjunction with hair, at least in my case.
I don't know exactly what they did with the samples, but all were collected.
james_bond_007
11-08-2012, 00:39
Not enough said. Certain jobs with the government that require a clearance have very strict requirements. What about every other job in the US? A hair test is NOT the norm.
No argument about other jobs or most jobs only using urine or blood.
The "enough said" was not directed at you or your comments.
Perhaps I should have written "I've probably said too much already."
I only had ONE job where they took things extremely serious and required the things I mentioned.
My apology if it came out wrong ...[Beer]
Every job I've had since the age of 18 has required urine and/or blood tests as part of pre-employment and periodic tests throughout the employment. They are the norm for many jobs.
I've had near routine urinalysis tests while in the process and while holding my TS-SCI security clearance with the Army. We also had unit mandated UAs, as well as Brigade S2 mandated UAs for clearance holders. Never had a single hair or blood test.
two shoes
11-08-2012, 15:52
Similar has been tried by manufacturers in Tennessee and Montana. Both claimed firearms manufactured and sold/kept instate are exempt from Federal regs.
BATFE raided said manufacturers very shortly thereafter and shut down same.
Don't the Federalies have to have the local Sheriff's permission to do anything like this? Isn't the Sheriff the last line of defense for the Constitution?
OneGuy67
11-08-2012, 16:04
Don't the Federalies have to have the local Sheriff's permission to do anything like this? Isn't the Sheriff the last line of defense for the Constitution?
The feds don't need the sheriff's permission to do anything in their county. Hell, most of the time, the feds don't even notify the sheriff of any investigation, action, or arrest in their county.
spqrzilla
11-08-2012, 16:09
Don't the Federalies have to have the local Sheriff's permission to do anything like this? Isn't the Sheriff the last line of defense for the Constitution?
Uh, no. [Stooge]
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