The Definitive Insider’s Guide to New Hampshire Cannabis Legalization (Cannabis and Guns) - Chapter V

ATF Form 4473 — the Firearm Transaction Record — is a seven-page document that must be filled out whenever someone buys a firearm from a licensed firearm dealer. It asks questions including whether the buyer is addicted to drugs and is the actual buyer of the firearm.

Question 21f states: 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.

Holding a valid state-issued cannabis patient registration card is considered prima facia evidence of such federally illegal use.

Lying on the form is a felony punishable by up to 10 years in prison. For being a user of unlawful drugs in possession of a firearm, the punishment is up to five years.

This obliges law-abiding citizens to choose either to retain their constitutionally protected second amendment rights OR use cannabis, even for legal medical purposes in their state of residence. Perhaps even worse, it tempts otherwise law-abiding citizens to commit a felony each time they exercise their constitutionally protected second amendment rights.

One path to resolving this apparently unconstitutional restriction is to await until and if federal cannabis prohibition is ended.

Another may be judicial relief from federal courts. Already several courts e.g., the 5th Circuit Court of Appeals in New Orleans covering Louisiana, Mississippi and Texas and the 10th Circuit in Denver covering Oklahoma, Kansas, New Mexico, Colorado, Wyoming and Utah have determined this provision to be unconstitutional, but their jurisdiction is regionally limited, and their decisions are subject to government appeal all the way to the Supreme Court. As a practical matter, federal prohibition may be over before the appeal process is concluded.

However, there is a third more immediate solution no-one has yet considered that could resolve this issue for New Hampshire medical cannabis cardholders. Since there’s slim to no chance that recreational cannabis sales will be legal in New Hampshire for at least the next five years, this would have an outsized impact here in our state.

There is an amendment attached to the federal budget renewed annually every year since 2014 called Rohrabacher–Farr that prohibits the US Department of Justice (and by extension any of its bureaus and agencies) from interfering with state medical cannabis programs, to wit: “None of the funds made available in this Act to the Department of Justice may be used, with respect to the States of AL, AK, AR, CA, CO, CT, DE, DC, FL, HI, IL, IA, KY, ME, MD, MA, MI, MN, MS, MO, MT, NV, NH, NJ, NM, OR, RI, SC, TN, UT VT, WA and WI, to prevent such States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.”

Concord could pass a revision to our current medical cannabis statute RSA 126-X with language along the lines of: “Registered New Hampshire cannabis patients who use, distribute, possess or cultivate medical marijuana under New Hampshire’s therapeutic cannabis program (TCP) may purchase, possess and transfer firearms in accordance with New Hampshire law”.

The effect would be that the US DOJ, their bureaus Alcohol, Tobacco, Firearms & Explosives (ATF) and Drug Enforcement Agency (DEA) would be barred from interfering with any of the provisions of our state’s medical cannabis program, now including registered medical cannabis patients exercising their second amendment rights. Of course, doing so would still violate federal law, but the DOJ, ATF and DEA would be powerless to enforce their probably unconstitutional restrictions.

Following the completion of ongoing rigorous due diligence and careful legal research this summer, it is expected that legislation to achieve this goal will be introduced in Concord in the Fall and will likely attract substantial support and sponsorship from across the political spectrum.

About The Author: Nathaniel is the owner of NH Cannabis,LLC. From the past couple of years, he has been building a robust, sustainable cannabis industry in NH emphasizing wellness, lifestyle & community. This Newsletter series will put a light on his ongoing, multi-year campaign to favorably update New Hampshire’s therapeutic cannabis regulatory and legal framework.