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Holder position on pot and banks could end up entrapping gun owners

Will easing banking rules for the pot industry help Holder and Obama send customer gun rights up in smoke?
Will easing banking rules for the pot industry help Holder and Obama send customer gun rights up in smoke?
Mark Wilson/Getty Images

Attorney General Eric Holder advocated legal marijuana businesses having access to the banking system, The New York Times reported Thursday.

“There’s a public safety component to this,” Holder said. “Huge amounts of cash, substantial amounts of cash just kind of lying around with no place for it to be appropriately deposited, is something that would worry me, just from a law enforcement perspective.”

That’s a signal to banks, which are currently “unwilling to enter the market” because they don’t want to run afoul of federal law. While Holder’s remarks were qualified to “tell prosecutors not to prioritize cases involving legal marijuana businesses that use banks,” and while it may not be an out-and-out “green light,” it’s certainly fair to view it as a precursor to an “all clear,” supplemented by the DOJ standing down on state pot legalization laws. It’s hardly wildly speculative to imagine elements within the banking industry rushing in to fill the void with full services once they’re assured such risks have been eliminated.

What the administration won’t stand down on is guns, as this column noted on Thursday. While ATF is prohibited by law from creating a database of gun owners, data-gathering can be done by other federal agencies strictly by monitoring financial transactions, and it's not unreasonable to wonder if that's already occurring with gun and ammo purchases, with all that implies. In this age of NSA spying on everything, and the feds having an eye on all banking transactions, it will be interesting to see if that information is collected and then shared between agencies, and if someone using a card at a dispensary subsequently finds his name kicked out on a NICS check.

If that’s the case, anyone answering “No” on a Firearms Transaction Record Form 4473 to the question “Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?” could find themselves at risk of felony prosecution.

That's because even though medical marijuana is legal in some states, and recreational marijuana is legal in Colorado, ATF does not recognize that for enforcement purposes against persons prohibited from owning a gun.

“[A]ny person who uses or is addicted to marijuana, regardless of whether his or her State has passed legislation authorizing marijuana use for medicinal purposes, is an unlawful user of or addicted to a controlled substance, and is prohibited by Federal law from possessing firearms or ammunition,” ATF Enforcement Programs and Services made clear in a 2011 open letter to Federal Firearms Licensees.

Don’t think for a moment the Attorney General hasn’t thought that current rules make such record-keeping problematic, and that he and his boss would not welcome an enhanced ability to impose a lifetime disability from firearms ownership on as many people as they can, including doing so “under the radar.”

At least in Illinois, those qualifying for medical marijuana will be told they will lose recognition of their gun rights if rules being proposed are enacted. In the case of Colorado’s “recreational” dispensaries, it’s not clear what duty those businesses have, if any, to notify customers that their purchase could not only make future firearms purchases illegal, but could actually turn them into instant felons if they already own a gun.

Yesterday, this column asked one of Denver’s major dispensaries if they provide any notice to their customers that purchases are viewed by ATF as disqualifiers from owning a gun (no reply has been received at this writing). Whether these businesses have a duty to inform the public, with attendant liability should they fail to do so, might be an interesting legal question asked by some who will be surprised to learn that their recognized right to keep and bear arms has gone up in smoke.


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When your turn to be tested comes, how will you fare? Wouldn’t it be better to stop the antis before they get that far? How can we, if most gun owners let a relative handful of activists do all the work? The latest GUNS Magazine "Rights Watch" column is online, and you can read it before the issue hits the stands. Click here to read "The Unconstitutional State.”

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