I Have a Medical Marijuana Card: Can I Still Possess a Gun in PA?
As you may have heard, medical marijuana is now legal in Pennsylvania for those who have been issued a valid Medical Marijuana Card and have received a certification from a physician. The next question some firearm owners are asking is whether patients who are prescribed medical marijuana can still possess firearms.
The Short Answer is “No”
While Pennsylvania law allows firearm possession by lawful users of medical marijuana, the federal ban on firearm possession by those who are “unlawful users of…any controlled substance” remains in effect, even for those whose use of marijuana is lawful under state law (because marijuana is still always a controlled substance under federal law). The Bureau of Alcohol, Tobacco, Firearms and Explosives (the “ATF”) even added language to the ATF 4473 Form (a federal form completed when buying a gun at a retail store) to remind buyers of this very fact.
One should be aware that even the mere possession of the medical marijuana card, by itself, absent the possession of actual marijuana, could be problematic for firearm ownership, though how such a scenario would play out is still unclear.
In a previous article, we discussed firearms in two categories: those that are subject to the National Firearms Acts (“NFA Firearms”), and those that are not (“non-NFA Firearms”). Non-NFA Firearms – including handguns and long guns – may require a background check or a registration, depending on your state’s laws. Transferring ownership of NFA Firearms, the subject of this article, is a much more complex process.
Types of Firearms Regulated by NFA
NFA Firearms is defined as including any of the following: (A) a short-barreled shotgun, the barrel(s) of which measure(s) less than 18 inches, or the overall length of which is less than 26 inches; (B) a short-barreled rifle, the barrel of which measures less than 16 inches, or the overall length of which is less than 26 inches; (C) “any other weapon” (“AOW” — a pen gun, for example); (D) a machine gun; (E) a silencer (more accurately, a “suppressor”); or (F) a destructive device (such as a hand grenade).
Steps for Registering a NFA Firearm
Some states require the registration of NFA Firearms with the state law enforcement authorities, and some do not. However, regardless of which state you live in, all NFA firearms must be registered with the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives (which is still commonly referred to as the “ATF”).
A “Form 4” is the ATF form required to transfer and register an NFA Firearm. Upon approval of a Form 4, an owner is issued a “tax stamp” (since the National Firearms Act is simply a chapter within the Internal Revenue Code), and only then may the applicant take possession of the NFA Firearm.
Note, however, that your state’s law might prohibit the possession of one or more of these NFA Firearms. By way of example only, Pennsylvania prohibits the possession of “destructive devices,” calling them “Prohibited Offensive Weapons,” but allows for the possession of any of the other above-listed NFA Firearms, provided they are properly registered with the ATF.
Background Checks vs. Registration
Let us keep in mind then that the NICS background check (in theory at least) simply ensures that a transferee is not a Prohibited Person, and, with some exceptions, nearly all firearms (both NFA and non-NFA) are subject to background checks. Registration, on the other hand, while required in all states for the transfer of NFA Firearms, is only mandated in a handful of states for non-NFA Firearms.
May we be precise in our terminology and zealous to keep these terms distinct, in theory and in practice, remembering that background checks are intended to keep guns out of the hands of the bad guys, whereas registration might eventually keep them out of the hands of the good guys.
If you believed everything you saw on TV and in the movies, you’d probably think every gun in the country is registered on a database that the feds or your state officials keep up to date. But, in reality, very few guns have to actually be “registered” in our country. That doesn’t mean the transfer of firearms and the required paperwork isn’t confusing though. In fact, it’s a topic most gun owners should brush up on.
What is Firearm Registration?
In order to comprehensively address the topic of firearms registration, I will make two distinctions. The first distinction is between the categories of firearms: those that are subject to the National Firearms Act (“NFA Firearms” – the focus of this post) and those that are not (“non-NFA Firearms” – covered in a future article). (I am avoiding other often-used terms, like “Title I Firearms,” “Title II Firearms” or “Class III Firearms,” as they are inaccurate and misleading.) The second distinction I will make is between registering a firearm, on the one hand, and undergoing an ownership transfer background check, on the other.
What is considered a non-NFA Firearm?
“Non-NFA Firearms” are the most commonly owned guns, and this category includes handguns (revolvers and semi-automatic pistols) and long guns (rifles and shotguns). Only a handful of states require registration of these types of guns. In fact, most states either do not require any registration of non-NFA Firearms or, like here in Pennsylvania, have laws that affirmatively prohibit registration of firearms. Check with a local attorney if you are unsure as to whether your state requires gun registration.
The premise of such non-registration laws is that registration is a step down a slippery slope, leading to eventual confiscation. Conversely, the motivation behind background checks is to ensure that those who are “Prohibited Persons” (such as felons) are not allowed to own guns.
Background Checks for Firearms
However, even if you live in a non-registration jurisdiction, your state will most likely (though not always) still require the transferee (the recipient) of certain non-NFA Firearms to undergo a background check (as mentioned above, for the purpose of making sure a transferee is not a “Prohibited Person”). This is done at a Federal Firearms Licensee (“FFL,” i.e. a dealer) who runs a background check on the transferee through the NICS (the National Instant Criminal Background Check System) database, though different states call the check by different names. This is always accompanied by the completion of an ATF Form 4473 (and some states require additional forms), which is the form that lists the various factors prohibiting gun ownership.
By way of illustration, all Pennsylvania handgun transfers must be subjected to a NICS check, with the completion of a Form 4473 by the transferee of the handgun. However, NICS checks (and therefore 4473s) are not required for long gun transfers in Pennsylvania. That means that a handgun that is owned in Pennsylvania but that was not properly transferred at an FFL (with a NICS check and Form 4473) is an illegal handgun, and its possession will subject the owner to criminal penalties. A long gun, however, as indicated above, can be transferred in Pennsylvania without an FFL-completed NICS check and Form 4473, and therefore you can transfer ownership of a long gun in Pennsylvania with just a handshake. (It is, however, strongly recommended that a Bill of Sale always be completed for such transfers).
How to Register a Firearm in Certain States
As distinguished from a NICS background check with the completion of ATF Form 4473, the registration of a non-NFA Firearm in a state that requires it will likely involve bringing the unloaded firearm to the appropriate police station for the purpose of alerting the municipality of its presence. This is typically done almost immediately after the ownership transfer and NICS background check. Check with a local attorney on the specific procedure in your state.
Background Checks as a Back-Door Registration System?
It has been claimed, and rightly so, that many states’ background check procedures in fact constitute “back-door” registrations, since the final result is the same: The government knows who has what guns. Pennsylvania is a good example of this. Even though we have a statute on the books that specifically outlaws any firearms registration, a dealer-facilitated background check must accompany all handgun transfers, and the form that the transferee fills out is then kept by the Pennsylvania State Police.
However, the storage of firearms purchaser information, while currently an unfortunate feature of many states’ firearms transfer procedure, is not a necessary feature of a background check per se. In other words (and here I describe not what the law is but what it could be if citizens were willing to act to change the laws), it would be entirely reasonable for a dealer to conduct a background check on a transferee by simply calling the state police and getting a thumbs up or thumbs down on the transferee without generating unnecessary paperwork for storage purposes. The state police could limit its record keeping to the fact that a background check was done on a specific firearm from a specific dealer, without any reference to the identity of the transferee. Only the dealer would maintain a photocopy of the transferee’s driver’s license, which he would only be mandated to provide to law enforcement if a warrant was issued for its provision in the case that a crime had been committed with the firearm in question.
Such a process would prevent a background check from becoming a backdoor registration but would also address legitimate law enforcement needs. Since this is not the case at present, the only firearms owners who are currently not subject to any kind of back-door registration are those who have purchased their firearms from private, non-licensed individuals in one of the states permitting such transfers to occur without a dealer or background check.