"Legal" Marijuana and Guns

[Tom Servo]

I'd still answer "No" to 11e, since I'm not an "unlawful" user.

If you did that, you'd be committing a felony by making a false statement on the form.

Under the legal situation we have now, Colorado has no say in the matter. They can't contravene federal law with one of their own.

 

[JohnKSa]

And since the federal government would have to arrest, try and convict me of something that it's entirely legal to do in Colorado...

It is not legal in Colorado. It is not legal anywhere in the U.S. because there is a federal law against it.

That absolutely includes Colorado since Colorado is in the U.S. and is therefore under federal jurisdiction.

The only thing that's different in Colorado vs. most other states is that in CO, there is no state law against it. So the state authorities probably won't be coming after you, but the feds will still have every right to arrest and prosecute you for violating federal law.

If federal law says it's illegal, then it's illegal everywhere in the U.S. regardless of what state, county or municipal laws/codes say.

The absence of a state, county, or municipal/law/code against an action can NOT nullify an existing federal law against that action.

A state, country, or municipal/law/code specifically stating that an action is legal can NOT nullify an existing federal law against that action.

To use an obvious example, let's say that there's a city in your state that has a city ordinance stating that murder is legal within the city limits. Would you believe that you could legally kill someone inside city limits? I hope not! There are still state and federal laws against murder, and those state and federal laws still apply within city limits. The city ordinance can not eliminate or nullify those laws. If you were to commit murder in this hypothetical city, you might reasonably expect that the CITY would not attempt to prosecute you for murder, but you should certainly expect to be subject to STATE and FEDERAL prosecution.

In the same way, Colorado does not criminalize the use/sale/purchase of marijuana, but that is irrelevant because there is FEDERAL LAW which criminalizes the use/sale/purchase of marijuana.

Therefore, even in Colorado, anyone who uses marijuana is an illegal user. That is because federal law applies in Colorado and federal law criminalizes the use of marijuana.

...if I still lived in Colorado and wanted to legally purchase and smoke some, I'd still answer "No" to 11e, since I'm not an "unlawful" user.

You would be committing an additional federal felony by lying on the 4473. You would be an "unlawful" user because the use of marijuana even in Colorado is a violation of federal law.

This isn't some abstract discussion about semantics and the fine nuances of legalese, this is about avoiding the commission of federal felonies.

We need to get this straight in our minds and make sure that all our fellow gun owners understand it.

 

[MrApathy]

What about those legally using marijuana per federal program. Dont recall how many are doing it not many I met one at one time. Last I heard the program was no longer accepting new patients but is doling out marijuana to the few who are still alive and approved.

 

[JohnKSa]

This source indicates that there are only 4 persons still in the program.

http://www.medicalcannabis.com/patients-care-givers/federal-ind-patients/

"To date, only four patients, Barbara Douglass (IA), George McMahon (IA), Irving Rosenfeld (FL) and Elvy Musikka (OR) continue to receive their medication from the federal government..."​

Since these 4 persons appear to be using marijuana legally per the federal government, I believe they could answer the 4473 question in the negative without fear of prosecution, assuming that they aren't illegally using any other controlled substances.

 

[Frank Ettin]

...if I still lived in Colorado and wanted to legally purchase and smoke some, I'd still answer "No" to 11e, since I'm not an "unlawful" user...

Garbage! If you smoke marijuana you are an unlawful user under federal law, and that's what counts.

...And since the federal government would have to arrest, try and convict me of something that it's entirely legal to do in Colorado, I'd say the odds are very much in my favor.

What make you think that the federal government would not prosecute you and could not convict you?

I just did a search of a legal data base to which I subscribe. Looking only at cases within the last ten years I found 11 appeals in federal court from convictions for being an unlawful user of a controlled substance in possession of a gun (with 18 within the last 15 years). Those of course were just appeals and would not include cases disposed of without the matter going to the appellate court.

What about those legally using marijuana per federal program. Dont recall how many are doing it not many I met one at one time. Last I heard the program was no longer accepting new patients but is doling out marijuana to the few who are still alive and approved.

Federal law allows for limited, lawful prescribing of drugs that can't otherwise be lawfully prescribed. It must be done under a formal research protocol and subject to oversight by an Institutional Review Board, as part of the clinical trial and investigation of new and novel drugs and therapies.

Some years ago there was a formal clinical trial conducted with marijuana. The clinical trial has long been over, and there will be no new participants.

However, the last time I looked into the question there were still four participants alive and continuing to receive marijuana on the theory that it would be medically inappropriate to discontinue a treatment regimen once begun under the trial.

Any of those four still alive and using marijuana today are the only lawful users of marijuana in the United States. No one else ever will be unless the law is changed.

 

[Chaz88]

If enough states follow Colorado then the federal law might eventually be changed.
As a practical matter I am sure a lot of gun owners violated the law before any kind of state legalization happened in any form.
But the bottom line is federal law trumps state and nobody should make plans to use state law to challenge unless they are just itching to be the first failed test case.

 

[shortwave]

It's been well over 30 years since I last toked on the evil weed, but if I still lived in Colorado and wanted to legally purchase and smoke some, I'd still answer "No" to 11e, since I'm not an "unlawful" user.

...and you would be committing a felony.

As has been pointed out, the 4473 form is a federal document dealing with federal regs./laws, not a state document dealing with state regs./ law. And must be filled out per federal guidelines, not state guidelines.

Same as your federal income tax documents has nothing to do with your state tax documents.

What is bothersome with the whole situation when something is legal as far as the state goes but illegal as far as federal law is (using the state legalization of pot in Colorado scenario) when someone gets busted by state LE for doing something illegal and happens to be in fed violation of having pot/gun on them when getting busted, then the state prosecutor can use these possible fed. drug/firearm charges as leverage in their case in a plea bargain situation if they choose to do so.
Another scenario would be someone such as Bloomberg getting busted in the same situation. His money, political clout and high powered attorneys may surely keep the pot/gun charges from being turned over to the feds whereas the average 'Joe' may not be as fortunate.

Whatever the case may be, I would not want to be sitting in the above possible scenario acting as a guinea pig in a test case. Especially knowing the anti gun sentiments of this administration were my case bounced over into the fed. courts.

 

[Nickel Plated]

Theoretically speaking, could the pot and illegal drugs prohibition to firearms ownership be challenged in court as essentially taking away 2A rights without due process.

I mean, no guns for felons? Ok, I don't support necessarily, but felons had their day in court.
No guns for those adjudicated mentally ill, again, not a fan of. But again, they had their day in court.

But you smoke a joint. No trial, no jury. No 2A rights for you.

 

[Frank Ettin]

Theoretically speaking, could the pot and illegal drugs prohibition to firearms ownership be challenged in court as essentially taking away 2A rights without due process....

Beats me. Anyone want to volunteer to be a test case? Anyone want to volunteer to bankroll the case?

 

[JimDandy]

Well I would guess:

The ones who can't say No on the form, and would trigger a denial had their day in court as well.

The ones who can say No on the form and not trigger a denial would, I believe, more accurately sue over self incrimination grounds. If a prohibited possessor can't be required to register a firearm because that would require self-incrimination, I would assume a pot smoker can't be required to self-incriminate on pot smoking.

 

[Frank Ettin]

You misunderstand the self-incrimination cases. You may not be compelled to incriminating yourself in order to perform a required act, like paying taxes or registering a gun. You may be required to waive your right against self incrimination in order to perform a voluntary act, like testifying at your trial or buying a gun.

No law requires that you buy a gun. If you choose to buy a gun, you may be required to truthfully answer the question on the form; and you may be prosecuted for answering untruthfully even if a truthful answer would incriminate you.

 

[iraiam]

Yep

Yep, by my read I would be in violation of federal law if I was to become a pot smoker and buy guns/ammo.

other than this, there are just way too many other good reasons to avoid pot, and the people who consume it.

As a Colorado resident, I can say these stoners are quickly becoming a nuisance of epic proportions.

 

[Bartholomew Roberts]

...and you would be committing a felony.

No, he would not be commiting a felony. There is an official federal regulation defining "unlawful or addicted user" as well as quite a bit of case law on the subject. Suffice it to say that somebody who has not used an illegal drug in 30 years is well clear of that hurdle.

A good thing too since at least two and possibly three of our last three Presidents would have been disqualified from possessing a firearm under the standard you propose.

 

[JimDandy]

No, he would not be commiting a felony. There is an official federal regulation defining "unlawful or addicted user" as well as quite a bit of case law on the subject. Suffice it to say that somebody who has not used an illegal drug in 30 years is well clear of that hurdle.

You missed part of his statement-

...but if I still lived in Colorado and wanted to legally purchase and smoke some...

Still living in Colorado and wanting to legally purchase and smoke some definitely implies a more recent involvement than his actual more than 30 years ago.

Given some of the schizophrenic politics involved, I wouldn't be surprised to see Project Exile type programs show up in pot friendly cities like Boulder and Denver.

 

[shortwave]

Originally posted by Bartholomew Roberts

:

No, he would not be commiting a felony. There is an official federal regulation defining "unlawful or addicted user" as well as quite a bit of case law on the subject. Suffice it to say that somebody who has not used an illegal drug in 30 years is well clear of that hurdle.

If he went out and purchased some smoke as he stated he could do if he still lived in Colorado, smoked it and then checked NO on 11e he would be lying on the form and WOULD be committing a felony punishable by up to five years in prison plus fines. Whether pot was legal in Colorado or not makes no difference.

Originally posted by WyMark:

It's been well over 30 years since I last toked on the evil weed, but if I still lived in Colorado and wanted to legally purchase and smoke some, I'd still answer "No" to 11e, since I'm not an "unlawful" user

 

[Salmoneye]

If enough states follow Colorado then the federal law might eventually be changed.

It's my understanding that this is not likely due to the international treaties that the US has signed over the years...

Case in point is recent 'legalization' in Uruguay who is now facing UN sanctions due to treaty violations...

http://www.usnews.com/news/articles...eaties-by-legalizing-marijuana-un-agency-says

 

[Bartholomew Roberts]

My bad - poor reading on my part. Even if his use was legal under state law, he could still be a prohibited person due to federal law. I missed the part where he stated a current intent.

 

[JimDandy]

You misunderstand the self-incrimination cases. You may not be compelled to incriminating yourself in order to perform a required act, like paying taxes or registering a gun. You may be required to waive your right against self incrimination in order to perform a voluntary act, like testifying at your trial or buying a gun.

No law requires that you buy a gun. If you choose to buy a gun, you may be required to truthfully answer the question on the form; and you may be prosecuted for answering untruthfully even if a truthful answer would incriminate you.

I guess I do.

No law requires you to possess a gun. SOME laws require you to register a gun you possess.

No law requires you to purchase a gun, SOME laws require you to fill out a form if you do.

If you are a prohibited possessor, and you don't register as required, you apparently can't be charged or convicted or some such, of failing to register because of self incrimination issues- tho the illegal possession is obviously still fair game.

If you would be a prohibited possessor, you CAN be charged with perjury despite exceptionally similar self-incrimination issues?

 

[Frank Ettin]

...If you would be a prohibited possessor, you CAN be charged with perjury despite exceptionally similar self-incrimination issues?

They are not similar self-incrimination issues.

1. If one is legally required to register a gun, and if registering a gun would require that you incriminate yourself by admitting you're prohibited person in possession of a gun, you cannot be prosecuted for not registering the gun.
   
   
   • Since registering the gun you already have would, under the circumstances assumed, be a compulsory act, prosecuting you for not registering the gun would violate your Fifth Amendment right against being:

     ...compelled in any criminal case to be a witness against...

     yourself.
     
     
   • You could still be prosecuted for being a prohibited person in possession of a gun, but the prosecution would have to be based on evidence other than your registration of the gun or evidence derived from your registration of the gun.
   
   
2. On the other hand, no one is required to buy a gun. You can not be prosecuted for not having a gun.
   
   
   • If you choose to buy a gun and buy one at a dealer (or if under state law you have to buy a gun at a dealer), you have to fill out a form; and you commit a federal crime by lying on that form (violating 18 USC 922(a)(6)).
     
     
   • But you can avoid having to fill out that form by simply not buying a gun. And if you don't buy a gun, you will not be prosecuted for not buying a gun.
     
     
   • Thus buying a gun is not compulsory, and so you may be prosecuted for failing to truthfully admit on the form a disqualifying condition.

 

[carguychris]

If you choose to buy a gun and buy one at a dealer (or if under state law you have to buy a gun at a dealer), you have to fill out a form; and you commit a federal crime by lying on that form (violating 18 USC 922(a)(6)).

Now is a good time to mention that CO state law requires that most in-state firearms transfers must go through a licensed gun dealer, thereby generating a Form 4473.

The law exempts transfers between certain family members, various types of temporary transfers, and transfers involving antiques, C&R firearms, and bequests; however, other than these exceptions, a CO resident cannot lawfully purchase a firearm without filling out the form.

18-12-112. Private firearms transfers - background check required - penalty - definitions

(1) (a) On and after July 1, 2013, except as described in subsection (6) of this section, before any person who is not a licensed gun dealer, as defined in section 12-26.1-106 (6), C.R.S., transfers or attempts to transfer possession of a firearm to a transferee, he or she shall:

(I) Require that a background check, in accordance with section 24-33.5-424, C.R.S., be conducted of the prospective transferee; and

(II) Obtain approval of a transfer from the bureau after a background check has been requested by a licensed gun dealer, in accordance with section 24-33.5-424, C.R.S.

(b) [omitted for brevity]

(2) (a) A prospective firearm transferor who is not a licensed gun dealer shall arrange for a licensed gun dealer to obtain the background check required by this section.

(b) A licensed gun dealer who obtains a background check on a prospective transferee shall record the transfer,[/B] as provided in section 12-26-102, C.R.S., and retain the records, as provided in section 12-26-103, C.R.S., in the same manner as when conducting a sale, rental, or exchange at retail. The licensed gun dealer shall comply with all state and federal laws, including 18 U.S.C. sec. 922, as if he or she were transferring the firearm from his or her inventory to the prospective transferee.

[Subsections 3-5 omitted]

(6) The provisions of this section do not apply to:

(a) A transfer of an antique firearm, as defined in 18 U.S.C. sec. 921(a) (16), as amended, or a curio or relic, as defined in 27 CFR 478.11, as amended;

(b) A transfer that is a bona fide gift or loan between immediate family members, which are limited to spouses, parents, children, siblings, grandparents, grandchildren, nieces, nephews, first cousins, aunts, and uncles;

(c) A transfer that occurs by operation of law or because of the death of a person for whom the prospective transferor is an executor or administrator of an estate or a trustee of a trust created in a will...

[Subsections (d) through (i) omitted; these sections concern various types of temporary transfers.]

(emphasis mine)

[Mandatory disclaimer: I am not a lawyer, nor do I play one on TV. This is not legal advice. Caveat emptor.]