Isabella Carter
Federal law in the US prohibits unlawful users and individuals addicted to illegal drugs from possessing firearms. This includes anyone who has tested positive for controlled substances in the preceding year. However, the implementation of these laws varies across states, with some requiring searches of in-state mental health and drug abuse records as part of the background check process. The NICS Index functions as a catch-all database for records that indicate an individual is prohibited from purchasing firearms, including mental health records. With the increasing legalization of marijuana use across states, the complexity of the ban on marijuana users owning firearms has increased, leading to legal challenges.
| Characteristics | Values |
|---|---|
| Federal law | Prohibits unlawful users and individuals addicted to illegal drugs from possessing firearms |
| Federal regulations | Define unlawful users as anyone who has used a controlled substance unlawfully in the preceding year |
| Federal law | Prohibits gun ownership by individuals unlawfully in the US, admitted to the US under a non-immigrant visa, or who have renounced citizenship |
| Federal law | Prohibits firearm possession by individuals subject to a domestic violence protective order or convicted of a domestic violence misdemeanor |
| State law | In some states, mental health records are explicitly required to be searched as part of the background check process |
| State law | In some states, the purchaser must authorize a search of mental health files as part of the background check process |
| Federal law | Makes it a felony for an unlawful user of any controlled substance to possess any firearm |
| Federal law | Does not differentiate between marijuana users and users of other drugs |
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What You'll Learn
Marijuana use
The ATF has stated that any person who uses marijuana is considered an unlawful user of a controlled substance and is prohibited by federal law from possessing firearms or ammunition. This stance has not changed, but the complexity of the ban has increased as more states legalize marijuana. As a result, some citizens who legally use marijuana under state law may feel unjustly restricted by the federal firearms ban.
The NICS database plays a crucial role in preventing guns from falling into the wrong hands. It includes records of arrests, convictions, and positive drug tests for controlled substance use within the past year. This information is used by gun dealers to determine if a potential purchaser is prohibited from acquiring firearms. However, there are inconsistencies in reporting, with many states submitting little to no records to the controlled substance file of the NICS database.
The Form 4473, which must be completed before acquiring a firearm from a licensed dealer, includes a question about marijuana use. It asks if the purchaser is an unlawful user of or addicted to marijuana or any other controlled substance. The form also warns that marijuana use remains unlawful under federal law, regardless of state legalization for medical or recreational purposes. This has raised concerns among medical marijuana users, who feel their information is being reported to the NICS database, despite medical record confidentiality.
It is important to note that the court rulings on this issue have faced criticism. In U.S. v. Dugan (2011), the Ninth Circuit's reasoning for upholding the ban on habitual drug users did not differentiate between marijuana users and users of other drugs. Additionally, the court did not require the government to demonstrate that drug users have difficulty exercising self-control, relying instead on the judges' personal intuitions.
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Federal law
The NICS background checks do not create a barrier to the legal sale or transfer of a gun. In 2015, the NICS call centers processed background checks in an average of just over two minutes. Calls transferred to NICS Examiners for further investigation were handled in less than eight minutes on average, including wait and processing time. The fastest processing time for a background check is through the NICS E-Check System, which averages less than two minutes.
The Controlled Substances Act (CSA) places all substances that were in some manner regulated under existing federal law into one of five schedules. This placement is based upon the substance’s medical use, potential for abuse, and safety or dependence liability. The CSA also provides a mechanism for substances to be controlled (added to or transferred between schedules) or decontrolled (removed from control). Proceedings to add, delete, or change the schedule of a drug or other substance may be initiated by the Drug Enforcement Administration (DEA), the Department of Health and Human Services (HHS), or by petition from any interested party.
Marijuana is classified as a Schedule I controlled substance, and thus, it is a felony for a user of marijuana to possess a firearm. On September 21, 2011, the ATF issued an Open Letter stating that any person who uses or is addicted to marijuana is prohibited by federal law from possessing firearms or ammunition. This is true regardless of whether their state has passed legislation authorizing marijuana use for medicinal purposes.
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Drug tests
Federal law prohibits unlawful users and individuals addicted to illegal drugs from possessing firearms. Federal regulations define these terms to include any person found through a drug test in the preceding year to have used a controlled substance unlawfully.
The NICS (National Instant Criminal Background Check System) is a database that includes state-prohibiting records, allowing the NICS Section and state users to identify people prohibited from possessing guns by state or federal law. However, there is a lack of reporting of drug abuse records to the NICS, with many states submitting fewer than 10 records to the controlled substance file of a centralized nationwide database, and others submitting none at all.
Drug court programs that require periodic drug testing are becoming more common, but this positive test data is rarely available for firearm purchaser background checks. This has resulted in an increasing complexity of the ban on firearm possession for drug users, especially with the changing legal status of marijuana across different states. For example, the ATF (Bureau of Alcohol, Tobacco, Firearms and Explosives) has stated that any person who uses or is addicted to marijuana is prohibited by federal law from possessing firearms or ammunition, despite some states legalizing marijuana for medicinal or recreational purposes.
Drug testing is a critical component of ensuring that individuals who are unlawfully using controlled substances do not have access to firearms. However, the current system relies on self-reporting and the results of drug court programs, rather than comprehensive drug testing data. This discrepancy highlights the need for improved reporting and data sharing between agencies to ensure that drug users are identified and prohibited from purchasing firearms in accordance with federal law.
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Mental health
The National Instant Criminal Background Check System (NICS) was established to improve public safety by preventing individuals with a history of mental illness who are deemed dangerous from accessing firearms. To address privacy concerns, mental health records submitted to NICS only include identifying information such as names and birth dates, excluding any clinical details. This modification to the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule aims to protect individuals' privacy while enabling the identification of those prohibited from firearm possession due to mental health reasons.
However, the effectiveness of NICS relies on states voluntarily reporting relevant records. As of 2007, only 22 states were voluntarily submitting records from mental health databases. This highlights the need for improved reporting practices and collaboration between states and NICS to ensure comprehensive and accurate information.
To ensure public safety, it is crucial to identify individuals who may pose a danger to themselves or others due to mental health issues. Federal regulations prohibit firearm sales to individuals who have been found by a court, board, or other lawful authority to lack mental capacity or be a danger to themselves or others due to their mental condition. This includes individuals who have been involuntarily hospitalized or committed to a mental health facility.
It is important to note that the majority of individuals with mental health conditions are not violent, and those with mental illnesses are more likely to be victims than perpetrators. However, research suggests a link between mental illness, substance abuse, and violence, indicating a higher risk for individuals with comorbid mental illness and substance abuse.
In conclusion, while mental health is a significant factor in NICS checks, it is essential to approach this topic with caution and respect for privacy. Improving the accuracy and completeness of reporting practices can help ensure that individuals in need of support receive assistance while also protecting the public from potential risks associated with firearm access.
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State laws
In the United States, the National Instant Criminal Background Check System (NICS) is a background check system created by the Brady Handgun Violence Prevention Act of 1993. The system was launched by the Federal Bureau of Investigation (FBI) in 1998 to prevent firearm sales to people prohibited under the Act. Federal law prohibits unlawful users and individuals addicted to illegal drugs from possessing firearms. Federal regulations define these terms to include any person found through a drug test within the preceding year to have used a controlled substance unlawfully.
However, states have inconsistently reported records identifying people whose drug abuse histories prevent them from legally possessing firearms. According to a November 2011 report, 44 states have submitted fewer than 10 records to the controlled substance file of a centralized nationwide database, and 33 states have not submitted any records. In addition, federal departments and agencies, such as the Department of Defense, produce records regarding criminal convictions and mental health adjudications that affect a person's eligibility to possess firearms. Still, there have been significant gaps in reporting to NICS by these entities, which, in some cases, has led to tragic consequences.
The Controlled Substances Act (CSA) places all substances that are regulated under existing federal law into one of five schedules. This placement is based on the substance's medical use, potential for abuse, and safety or dependence liability. The CSA provides a mechanism for substances to be controlled (added to or transferred between schedules) or decontrolled (removed from control). Proceedings to add, delete, or change the schedule of a drug or other substances may be initiated by the Drug Enforcement Administration (DEA), the Department of Health and Human Services (HHS), or by petition from any interested party.
While background checks under federal law are not required for intrastate firearm transfers between private parties, some states require background checks for firearm transfers not covered by the federal system. These states either require gun sales to be processed through a Federal Firearms License (FFL) holder or require the buyer to obtain a license or permit from the state. Nearly 30 million NICS background checks were performed in 2023.
In conclusion, while federal law prohibits unlawful users and individuals addicted to controlled substances from possessing firearms, the effectiveness of the NICS system relies on consistent and complete reporting by states and federal agencies. The CSA provides a framework for classifying and regulating controlled substances, but the ultimate impact on firearm ownership is determined by the NICS background check process, which may vary depending on state-specific requirements and reporting practices.
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Frequently asked questions
A controlled substance is a drug or chemical substance whose manufacture and use are regulated by a government.
Federal law prohibits unlawful users and individuals addicted to illegal drugs from possessing firearms. This includes marijuana users, even in states where its use is legal.
The Ninth Circuit reasoned that because the Supreme Court deemed “longstanding prohibitions” on felons and the mentally ill “presumptively lawful,” a ban on habitual drug users must be lawful.
Federal regulations define "unlawful user" to include any person found through a drug test within the preceding year to have used a controlled substance unlawfully.
Form 4473 is the form that federal law requires any transferee to complete before acquiring a firearm from a licensed dealer. It asks the purchaser if they are an unlawful user of, or addicted to, marijuana or any other controlled substance.
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