Occasionally I will receive a call from a thoroughly confused potential client who has been denied a firearms purchase and doesn’t understand why.
They were able to honestly answer all of the questions on the ATF Form 4473 in the negative.
They have never been convicted of a misdemeanor crime of domestic violence.
They have never been convicted of a felony.
They have never suffered from any mental health issues.
In fact, the only conviction on their record at all is a misdemeanor charge for possession of marijuana from 10 months ago. They have not used marijuana, or any other illegal drugs since, and no longer consider themselves an ‘unlawful user of or addicted to any controlled substance‘.
So why did this conviction cause their purchase to be denied? They honestly answered question 11e ‘No’ and, unlike other questions where there are further instructions later in the form, that is not the case with this question.
The answer can be found in 27 CFR § 478.11 which provides the following detailed guidance concerning the interpretation of the phrase ‘unlawful user of or addicted to any controlled substance‘ (emphasis added):
An inference of current use may be drawn from evidence of a recent use or possession of a controlled substance or a pattern of use or possession that reasonably covers the present time, e.g.,
a conviction for use or possession of a controlled substance within the past year;
multiple arrests for such offenses within the past 5 years if the most recent arrest occurred within the past year;
Note that under this definition, mere arrests (absent convictions) are sufficient to trigger a temporary purchase prohibition if more than one occurred during the last 5 years and at least one of them occurred within the 12 months preceding the date of the attempted purchase.
The due process and constitutional issues raised by such a broad definition are concerning but outside the scope of this article.
I should also point out that there are other disqualifying criteria in the regulation which I excluded as irrelevant to this particular topic but which a prospective buyer with any substance abuse history would be wise to read.
Ultimately there are two points to take away from this regulation:
- The 4473 should be amended to include the criteria from 478.11 in an instructions section for question 11e; and
- If you have a misdemeanor conviction for use or possession of a controlled substance within the past year or multiple arrests for such offenses within the past 5 years if the most recent arrest occurred within the past year then you cannot purchase a firearm from a licensed dealer.
Disclaimer: As always, this information is presented for educational purposes only and does not give rise to an attorney-client relationship. Additionally, I am licensed to practice law in the Commonwealth of Virginia and this answer may not be appropriate for other jurisdictions.
