ATF Rescinds NICS Waiver for Michigan CPLs.
What's Going On?
Yesterday, the ATF issued a
letter to all Michigan FFLs (gun dealers) notifying them that Michigan CPLs are no longer valid for NICS waivers. Our team immediately began looking into the issue. Here is what we know at this time.
Before diving into things, we want to note that Licenses to Purchase a Pistol (aka “LTPs” or RI-010s)
are still valid for NICS waivers. This is also confirmed by the ATF
here.
Background:
A NICS waiver is when a state license satisfies a requirement in federal law that requires background checks on firearm transfers from licensed dealers. Essentially, if you passed an equal or better background check when you obtained your state license, then then the state license may be used in the place of the federal check.
Waivers are a common sense exception that saves gun owners, gun dealers, and the government time and money.
What Is Going On:
On March 3, 2020, the ATF issued a letter informing Michigan gun dealers that, in their opinion, the Michigan CPL no longer meets the requirements to be considered as a NICS waiver.
The ATF's letter is ambiguous as to what exactly they based their determination on. While they allege that CPLs are being "issued to applicants who were likely prohibited due to a conviction for a misdemeanor crime of domestic violence . . . and to habitual marijuana users" they do not provide any basis as to why they have decided to make these allegations.
We believe one of two things is happening:
(1) The MSP is failing to do their job, which requires them to conduct a NICS check on every CPL applicant, among other things. We believe this possibility to be unlikely and have no information at this time to believe that it is true.
(2) The ATF is misreading and misapplying the law. We think this is the more likely one.
Legal Background:
18 USC 922(t)(3)(A)(ii) provides that a NICS check is not required if the purchaser presents a license that was issued from a state that requires a government official verify that the licensee is not prohibited from possessing firearms. Further,
27 CFR 478.102(d)(iii) restates 922(t) and adds a requirement that the government official check NICS in making their determination. Michigan law,
MCL 28.426, satisfies this requirement and resulted in Michigan’s CPL being
recognized as a waiver in 2006. This law has not changed.
Again, we have no information that would cause us to believe that the MSP is not conducting a NICS check on every CPL applicant. Thus, because MCL 28.426 has not changed and still satisfies the requirements in the relevant federal statute,
this suggests that the ATF’s determination may not be on sound legal footing.
This theory is supported by the inconsistent application of the waiver. The ATF has applied contradictory standards to different states regarding a NICS waiver and appears to now be doing the same in Michigan.
Legalized Marijuana:
Some have suggested that Michigan’s legalization of recreational marijuana is the cause of this issue. We think this is unlikely and find no legal support for the claim.
As previously mentioned, 922(t) requires a determination, based on the information available, that the applicant is not prohibited from possessing firearms. The mere thought that someone could possibly use marijuana legally under state law is no justification for believing that a specific person does use marijuana and is thus a prohibited person under federal law.
Further, as we detailed years ago,
possessing a medical marijuana license does not make the person a prohibited person. It is the use of the drug that does this. Thus, knowledge that an individual possesses a medical marijuana license alone, absent any evidence to believe the individual actually uses the drug, is insufficient to classify them as a prohibited person.
To be clear, there are other states that have legalized recreational marijuana and yet have licenses that qualify as a waiver, including: AK, CA,
and MI (see note about LTPs above). Also, states that have legalized medical marijuana and have a NICS waiver include: AR, AZ, HI, LA, MO, MT, ND, UT, and WV.
Domestic Violence:
We are not sure what is going on here. It’s possible that the ATF does not understand that a
misdemeanor domestic violence conviction does not equate to a lifetime ban on the possession of firearms under Michigan law. See
U.S. v. Sanford, 707 F.3d 594 (6th Cir. 2012) (noting that Michigan sets aside such misdemeanor convictions after 8 years, thus causing the individual to no longer be a prohibited person under federal law). However, this is only speculation at this time.
Either way, federal law requires that Michigan law require a background check, which Michigan law does. Thus, even if we assume that the MSP messed up a few times, that does not change Michigan’s compliance with the statutory requirements for a NICS waiver.
All options are currently on the table for us, including a possible legal challenge. Stay tuned. If you have
any questions, email us at
lobbying@miopencarry.org.
Tom Lambert
President
Michigan Open Carry, Inc.
TLambert@miopencarry.org
Michigan Open Carry, Inc is a Not-For-Profit organization that depends on our dues paying members to continue our operation. We are an all-volunteer organization. As such, no one is paid a salary and very few of the personal expenses of our officers are reimbursed. Won't you consider
joining us or renewing as a dues paying member today? If you need technical help with the process, please email
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