Experts: Legalized marijuana could make it trickier to purchase guns in Ohio

If Ohio voters approve State Issue 2, marijuana users will likely have a new-found sense of freedom. But since marijuana will remain a Schedule I controlled substance at the federal level, questions arise over its use and the legal purchase of firearms.

The proposed new law would allow those 21 or older to buy, sell, use or grow marijuana under a set of rules.

But in order to purchase a gun or ammunition in Ohio, Form 4473 of the federal Bureau of Alcohol Tobacco Firearms and Explosives must be filled out, under penalty of perjury, including the fifth question on the first page that some may pause at: "Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?"

Answering yes automatically disqualifies you from purchasing a gun. Lying on the form and getting caught is a felony, punishable by up to 10 years in federal prison.

"They're bound by federal law," to answer honestly, said attorney Sean Maloney of the Buckeye Firearms Association, a gun rights advocacy group.

But how often does prosecution happen if you don't?

Rarely.

"Very few people are ever prosecuted for perjuring themselves by lying on that form," said Maloney.

Convictions even less so.

More: Struggling marijuana industry hoping for Ohio's Issue 2 to help boost bottom line

A 2018 report to Congress by the U.S. Government Accountability Office showed that there were just 12 prosecutions in 2017 against those who lied on the Form 4473. That's the result of 12,000 cases of lying that were investigated out of 8.6 million gun transactions that year.

Maloney won't give advice for those filling out forms. But he concedes that "mental gymnastics" can play a role when doing so for those who use marijuana either as prescribed by a doctor or, if Issue 2 passes, for recreation.

"I can say I've smoked my last joint yesterday and I won't do so in the future. And it's truthful at the moment," he said.

He notes that drugs like oxycodone, vicadin and other opiates have lower federally controlled substance classifications and have similar effects as marijuana, yet don't prohibit firearms purchases if used legally.

"You can't revoke someone's Second Amendment rights for that," Maloney said.

Eric Delbert, owner of LAPD Firearms and Range on Bethel Road, takes a conservative approach. If someone even asks about medical marijuana he may turn them away.

As few as a fourth of 1% of his customers check the box, and sign away their rights to a purchase, he said. For the one or two weekly who enter the store smelling of marijuana, "we turn them around at the door," Delbert said.

Others take a "try and buy" approach, risking prosecution," he said, thinking "Let me see if the system is up to date and if it will catch me."

The ATF in May affirmed its stance: "Marijuana is considered a Schedule I drug, which under federal definition, has no accepted medical use and a high potential for abuse. Other drugs in this category include heroin, LSD, ecstasy, etc. Federal law does not provide any exception allowing the use of marijuana for medicinal or recreational purposes."

The Department of Health and Human Services this summer moved to reclassify marijuana as less harmful than cocaine or heroin and remove it as a Schedule 1 drug. Instead, it argued marijuana should be classified as a Schedule 3 substance, which consists of drugs “with a moderate to low potential for physical and psychological dependence.”

In addition, a federal appeals court in August ruled that drug users shouldn't be automatically banned from having guns.

It's time for Congress to follow the 23 states that have legalized pot and revoke its controlled substance status, Maloney and others believe.

"It doesn't make sense to put people in a quandary," he said.

About one in seven Ohioans have said they've used marijuana in the past year. More than 600,000 firearms were purchased by Ohioans legally last year, according to Safehome.org.

"It's kind of a trap for a lot of people," said Dean Rieck, executive director of the Buckeye Firearms Association. "The Food and Drug Administration does not acknowledge any benefit to medical marijuana."

Rieck said with FDA approval of pot for therapeutic use, Congress, along with other federal agencies including ATF might follow, and eventually there would be uniform agreement, less confusion and fewer restrictions for gun owners.

Gun dealers withholding the sale of weapons "should be about whether you're a violent felon, not about who you are or what kind of drugs you use," he said. "We're concerned that if you're a user (of marijuana) that that shouldn't bar you from owning a gun."

Legalizing pot in Ohio also has implications for cops, said Brian Steel, president of Fraternal Order of Police Capital City Lodge No. 9, the union for Columbus and most suburban police departments.

He envisions an officer stopping a vehicle for a minor offense such as a missing tail light, the driver opening the window and a waft of marijuana flooding out.

Currently, that would give the officer probable cause to search the vehicle. And if a stolen gun was found, to file charges.

But if marijuana becomes legal, "I imagine a suppression hearing by a good defense attorney will require prosecutors to throw out the charge because there was no probable cause for the search," Steel said.

Suzanne Dabkowski, spokeswoman for ATF, said these examples and others will likely be used by lawmakers to determine if laws will change.

"That's literally a Congressional decision to take (marijuana) off the (controlled substance) schedule. Literally, our hands are tied."

dnarciso@dispatch.com

This article originally appeared on The Columbus Dispatch: Ohio's legalized pot effort could create hurdles for gun buyers