"Legal" Marijuana and Guns

[JimDandy]

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.

In both examples we're talking about- in neither case does one HAVE to have a gun correct?

You don't have to have one, but if you do, in theory you have to register it.

You don't have to have one, but if you do, in theory you have to fill out a 4473-type form for it.

In both examples, IF you have A, the government requires you to have done B. And B is where you can get in trouble if you shouldn't have A.

 

[orangello]

http://www.drugabuse.gov/publications/drugfacts/nationwide-trends

That website reported about 18 Million users of marijuana/cannabis at the end of 2012. That is a large number of people to deny their Second Amendment-recognized rights (recognized not granted).

I have not heard a reasonable legal argument supporting the legitimacy/legality, under current federal law, of using marijuana/cannabis while owning and transferring firearms. Marijuana/cannabis is on the federal naughty list in black and white. Given the number of people whose right to an armed self defense as recognized under U.S. federal law by the Second Amendment to our U.S. Constitution, it would seem the most reasonable solution would be to remove marijuana/cannabis from the federal schedule of "controlled substances" and restore federal recognition of the right to an armed self-defense to these millions of U.S. citizens.

Until that happens, those who wish to enjoy this medicinal/recreational plant should be aware that they do so at the risk of voiding the federal government's recognition of their right to an armed self defense. I'm specifically not saying that they don't still have all of their rights, only that the current federal-level government of this country won't recognize one particular right that they have unless they refrain from marijuana/cannabis use. Those people affected will have to evaluate how much that federal recognition means to them and act accordingly to protect their current level of "freedom".

On a personal note, I think the feds have overstepped their Constitutional powers in both areas, and I think the number of people who share that opinion is growing.

 

[Tom Servo]

it would seem the most reasonable solution would be to remove marijuana/cannabis from the federal schedule of "controlled substances"

This would seem to be the most direct way of handling the problem. That would require federal legislation. Are there the votes for it? That's another question altogether.

The other option is reversing the courts' overreaching reading of the Commerce Clause, but that's not so likely.

In the meantime, the problem remains. People will be prosecuted, and for felonies, many of whom will be unaware they're breaking the law.

 

[Frank Ettin]

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.

In both examples we're talking about- in neither case does one HAVE to have a gun correct?

You don't have to have one, but if you do, in theory you have to register it.

You don't have to have one, but if you do, in theory you have to fill out a 4473-type form for it....

No, you are wrong.

1. In the first case, while you don't have to have a gun you actually do have a gun.
   
   
   • And since you do have a gun, the law where you are requires that you register it.
     
     
     • But if you register it as required by law, you must disclose your unlawful possession of the gun.
       
       
     • So your choices are to (1) register the gun expose yourself to legal liability for being a prohibited person in possession of a gun; or (2) not register the gun and expose yourself to legal liability for not registering the gun. (Getting rid of the gun doesn't work because you have already committed the crimes of being a prohibited person in possession of a gun and failing to register the gun.)
     
     
   • You have no choice which would allow you to escape legal liability. Therefore you can't be prosecuted for not registering since you can't be compelled to incriminate yourself by registering the gun you already possess thus incriminating yourself.
   
   
2. In the second case you don't already have a gun. You might want one, but you don't have one at the present time. But your desire for a gun creates a problem for you.
   
   
   • You could acquire the gun at a dealer, or you might under state law be required to acquire a gun at a dealer.
     
     
     • But if you acquire a gun at a dealer, you must fill out a form.
       
       
     • And your truthful answer on one question on the form would disqualify you from acquiring that gun.
       
       
     • So the only way you could acquire the gun at a dealer would be to lie in response to that question. But lying on the form is a federal crime.
     
     
   • So you have four choices: (1) you could go without having a gun; (2) you could tell the truth on the form and not be able to acquire that gun at a dealer; (3) you could acquire the gun through a private transaction; or (4) you could lie on the form so you could acquire the gun from a dealer;.
     
     
     • The first choice exposes you to no potential legal liability.
       
       
     • The second choice exposes you to no legal liability, except for potential liability for being a prohibited person attempting to purchase a gun.
       
       
     • The third choice exposes you to legal liability for being a prohibited person in possession of a gun (and perhaps for violating state law regarding acquisition of a gun).
       
       
     • The fourth choice exposes you to legal liability for (1) lying on the form; and (2) being a prohibited person in possession of a gun.
     
     
   • But after all of that, you still have one choice which leaves you with no legal liability: you could go without a gun. True that frustrates your desire to have a gun, but it keeps you out of jail.

 

[carguychris]

Marijuana/cannabis is on the federal naughty list in black and white. Given the number of people whose right to an armed self defense as recognized under U.S. federal law by the Second Amendment to our U.S. Constitution, it would seem the most reasonable solution would be to remove marijuana/cannabis from the federal schedule of "controlled substances" and restore federal recognition of the right to an armed self-defense to these millions of U.S. citizens... Until that happens, those who wish to enjoy this medicinal/recreational plant should be aware that they do so at the risk of voiding the federal government's recognition of their right to an armed self defense.

It makes one wonder whether the Governor and Legislature of CO were aware that their recently-passed gun-control and marijuana-legalization legislation are essentially a Catch-22 as it relates to federal law. As posted above, CRS 18-12-112 explicitly requires most firearms ownership transactions in CO to follow 18 USC § 922, thus placing any (locally) legal pot smoker in violation of the Fed's prohibition on possession of firearms by marijuana users.

 

[Tom Servo]

It makes one wonder whether the Governor and Legislature of CO were aware that their recently-passed gun-control and marijuana-legalization legislation are essentially a Catch-22 as it relates to federal law.

That's an idea that's been going around quite a bit lately. Given that state law already has provisions explicitly barring medical marijuana users from getting CCW permits, I can't believe this possibility wasn't brought up.

It's tempting to look at this as backdoor gun control, but unless we have proof of such intent, we're better off avoiding the allegation.

 

[Frank Ettin]

...As posted above, CRS 18-12-112 explicitly requires most firearms ownership transactions in CO to follow 18 USC § 922, thus placing any (locally) legal pot smoker in violation of the Fed's prohibition on possession of firearms by marijuana users.

But a marijuana user (even if legal under state law) will always commit the federal felony of being a prohibited person in possession of a gun, even if he otherwise lawfully (e. g., before taking up marijuana) acquired the gun without filling out a 4473 (e. g., acquired it privately in Colorado before the current law became effective, acquired it elsewhere privately before becoming a Colorado resident, or acquired it through one of the exceptions under Colorado law).

 

[JimDandy]

This statement:

I have not heard a reasonable legal argument supporting the legitimacy/legality, under current federal law, of using marijuana/cannabis while owning and transferring firearms.

-And this statement:

Given the number of people whose right to an armed self defense as recognized under U.S. federal law by the Second Amendment to our U.S. Constitution, it would seem the most reasonable solution would be to remove marijuana/cannabis from the federal schedule of "controlled substances" and restore federal recognition of the right to an armed self-defense to these millions of U.S. citizens.

-Seem to be at cross-purposes. Did you mean you hadn't heard a reasonable legal argument for prohibiting those who use marijuana/cannabis? There are several, the gang/drug correlation is the first and obvious one. At least one, and probably most if not all, State(s) have legislation prohibiting the carrying of firearms while intoxicated- and given the technical logjam over driving while high in my State, the test for carrying while high is probably equally problematic.

The second choice exposes you to no legal liability, except for potential liability for being a prohibited person attempting to purchase a gun.

And that sort of thing has been struck down in the past- William ALBERTSON and Roscoe Quincy Proctor, Petitioners, v. SUBVERSIVE ACTIVITIES CONTROL BOARD. 382 US 70 - And Timothy F. LEARY, Petitioner, v. UNITED STATES.

395 U.S. 6

The requirement of filing the registration form (IS-52a) is incriminatory within the meaning of the Self-Incrimination Clause because the admission of Party membership, required by the form, might be used as an investigatory lead to or evidence in a criminal prosecution.

We noted that wagering was a crime in almost every State, and that 26 U.S.C. 6107 required that lists of wagering taxpayers be furnished to state and local prosecutors on demand. We concluded that compliance with the statute would have subjected petitioner to a "real and appreciable" 6 risk of self-incrimination.

 

[Slamfire]

Yes there is hypocrisy all around. Admit to being a user of marihuana and you may lose more than just your right to keep and bear arms.

At least the federal Government is not aggressively pushing for inforcement of marihuana laws. What we don’t need is another Mabel Walker Willebrandt http://en.wikipedia.org/wiki/Mabel_Walker_Willebrandt . According to the PBS show on Prohibition, no one told Mabel that the law was a joke and she aggressively used her position as US Assistant Attorney General to enforce what was, the absolute worst amendment ever put into the constitution. The societal travail that our country underwent due to the blockheads in Congress for passing prohibition and the blockheads in the Executive branch for enforcing prohibition was just horrible and we are still living with organized crime they created .

I consider the bans on Marihuana to be a good example of how industries use Government to eliminate competitors. The wine and alcohol industry eliminated a competitor in the area of recreational drugs, and the wood and pulp growers uses the laws to eliminated competition from industrial hemp.

I guess the question I am wrestling over is, “should one be honest and truthful to the Corporate interests who run the Government” ? There is no easy answer. Still, until such time, if ever, society insists on changing the laws at a National Level, understand they penalties for honesty.

 

[Tom Servo]

Did you mean you hadn't heard a reasonable legal argument for prohibiting those who use marijuana/cannabis?

There may not have been one, but somebody will have to step up to be the test case. That's going to be problematic and expensive, and the shadows of Wickard and Raich are going to cloud the proceedings.

Of course, this may be happening fairly soon as out-of-staters go to Colorado, purchase marijuana, then get into trouble in their home states. DUI laws in many places focus on the presence of metabolites in the blood rather than visible intoxication. Furthermore, transporting it across state lines opens the consumer up to significant trafficking charges.

 

[JimDandy]

Don't rule out Washington Tom. We were stupid enough to legalize it too. And our local LEO's are being reined in from enforcing even what is still illegal. Top that off with Washington being more firearms friendly than Colorado, and I think the tension in the laws is slightly more likely here.

ETA: Colorado has about 1 in 36 Concealed Carriers, Washington has about 1 in 18. While that's not definitive evidence more people in Washington own, it's certainly suggestive.

 

[cal10]

I recall my last purchase in California the form asked if you were addicted to or using any legal or illegal substances with an exception for marajuana. The state DOJ does not consider pot use as a disqualifier. This is ironic seeing as how California has the most strict regulations on firearm purchases/ownership in the country.

 

[dajowi]

I'm just playing the devil's advocate here:

"It shall be unlawful for any person (...) who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. § 802) (...) to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce."

This specifically says, "interstate" not "intrastate."

I'll also point out that on the federal form the question regarding use of drugs is meaningless. One can be totally "drug free" at the time the form is filled out and the firearm is purchased. Unless of course the government feels that someone who smoked a joint 20 years previous to filling the ATF form for the firearm purchase (is considered to be by the federal government currently) using illegal substances or is addicted to prohibited substances at the time the form was submitted. This is of course preposterous.

It is stated somewhere within this thread that the state of Colorado doesn't allow medical marijuana users to obtain concealed carry licenses. Although I'm not in Colorado, Oregon has mandated that medical marijuana users cannot be denied an Oregon State concealed handgun license based on that fact and licenses are indeed issued to people within the OMMP. So at least the state of Oregon has determined that an individual can safely use marijuana and possess firearms used for self defense.

 

[JimDandy]

First, try finding a firearm that is not in Interstate Commerce.

As for the time frame, it's been pointed out already that the Federal Government has defined the time period that counts. I don't remember where or how long, but my memory says it's about five years.

As for Oregon, they can decide just about anything they want at the State level. Their Medical Marijuana recipients are still probably federally barred from firearms, concealed or otherwise. Just like the Federal Government can choose to enforce such a prohibition or not based on the (political) expediency or lack thereof in a prosecution. A strongly anti-marijuana Chief Executive could theoretically change policy, and cause headaches for a lot of people.

 

[Tom Servo]

This specifically says, "interstate" not "intrastate."

Yes, but the courts' reading of the Commerce Clause includes things that can affect interstate commerce. That reading includes firearms. In any case, nearly every firearm in Colorado would have crossed state lines to get there.

One can be totally "drug free" at the time the form is filled out and the firearm is purchased. Unless of course the government feels that someone who smoked a joint 20 years previous to filling the ATF form for the firearm purchase (is considered to be by the federal government currently) using illegal substances or is addicted to prohibited substances at the time the form was submitted.

I don't imagine someone could be effectively prosecuted if the usage was decades ago, but here's the guideline the ATF uses:

Such use is not limited to the use of drugs on a particular day, or within a matter of days or weeks before, but rather that the unlawful use has occurred recently enough to indicate that the individual is actively engaged in such conduct. A person may be an unlawful current user of a controlled substance even though the substance is not being used at the precise time the person seeks to acquire a firearm or receives or possesses a firearm. 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, or multiple arrests for such offenses within the past five years if the most recent arrest occurred within the past year.

As you can see, it's subjective.

 

[Frank Ettin]

...Oregon has mandated that medical marijuana users cannot be denied an Oregon State concealed handgun license based on that fact and licenses are indeed issued to people within the OMMP. So at least the state of Oregon has determined that an individual can safely use marijuana and possess firearms used for self defense...

That's not really an accurate description of what happened in Oregon.

The Oregon Supreme Court, in Willis v. Winters, 253 P.3d 1058 (Or., 2011), ruled that Michael Winters, as Sheriff of Jackson County, was required under Oregon law to issue a concealed handgun license to Cynthia Willis even though she was a medical marijuana user. The Court concluded that Ms. Willis had satisfied the statutory requirements under Oregon's "shall issue" conceal handgun license (CHL) law, notwithstanding that the use of marijuana violated federal law. So the Oregon sheriff was obliged under the applicable Oregon statute to issue a CHL to Ms. Willis.

The case did not substantively address the federal law issue. In fact, the Oregon Supreme Court specifically noted (at pp. 1065 - 1066, emphasis added):

...Neither is the statute [the Oregon CHL law] an obstacle to Congress's purposes in the sense that it interferes with the ability of the federal government to enforce the policy that the Gun Control Act expresses. A marijuana user's possession of a CHL may exempt him or her from prosecution or arrest under ORS 166.250(1)(a) and (b), but it does not in any way preclude full enforcement of the federal law by federal law enforcement officials...

And thus the Oregon Supreme Court specifically acknowledged that while Ms. Willis would not be arrested by Oregon LEOs or prosecuted under Oregon law for carrying a concealed handgun, she could still be arrested by federal LEOs, prosecuted under federal law and sent to federal prison for being a prohibited person in possession of a gun in violation of 18 USC 922(g)(3).

The second choice exposes you to no legal liability, except for potential liability for being a prohibited person attempting to purchase a gun.

And that sort of thing has been struck down in the past- William ALBERTSON and Roscoe Quincy Proctor, Petitioners, v. SUBVERSIVE ACTIVITIES CONTROL BOARD. 382 US 70 - And Timothy F. LEARY, Petitioner, v. UNITED STATES.

395 U.S. 6 ....

Sigh!

Again you are wrong.

The cases you cite are cases in which the person's sole choices are, essentially, to commit a crime by failing to register or file something or admit a crime by registering or filing something.

But if you don't have a gun and can't lawfully possess one, not having a gun is not a crime. So you have the legal choice to go without a gun.

I've tried explaining to you several ways why requiring someone to truthfully complete the 4473 and prosecuting him if he doesn't answer truthfully does not violate one's right against self incrimination. You apparently can not or will not understand what I've been explaining to you and why the 4473 issue is different from the registration or tax filing cases.

The bottom line is that I have not found a case in which a federal court has let someone charged with violating 18 USC 922(a)(6), making a false statement on a 4473, based on a defense that requiring a truthful answer would violate one's privilege against self-incrimination. Can you cite such a case?

And on the contrary, a quick search found more than 50 appeals from convictions for violation of 18 USC 922(a)(6). In not a single one did the defendant even raise an objection to the conviction on the grounds that requiring a truthful answer violated his right not to incriminate himself.

 

[JimDandy]

Can you cite such a case?

Probably not. I also probably can't find a case prior to Gideon v Wainwright that holds the state must provide a lawyer for anyone who needs one. But Gideon still made his point.

And my point is more than that the question should provide immunity from prosecution for perjury. My point is that the question is, even by itself, asking for self incrimination. Oreste Fulminante could have stayed silent and broken no law, but he confessed to an informant for protection while in prison.

Are you suggesting that if a plain clothed police officer looks over my shoulder when I check yes on this government form, and uses that as probable cause, I wouldn't have incriminated myself?

The fact is the form specifically, directly asks if you have committed a crime.

 

[shortwave]

Originally Posted by cal10 :

I recall my last purchase in California the form asked if you were addicted to or using any legal or illegal substances with an exception for marajuana

cal10,

When you refer to 'the form' in your above statement are you referring to the 4473 form?

 

[Frank Ettin]

...Are you suggesting that if a plain clothed police officer looks over my shoulder when I check yes on this government form, and uses that as probable cause, I wouldn't have incriminated myself?...

Let's limit this to the 4473 issue so things don't get confused. So we'll posit that the LEO is looking over your shoulder as you fill out a 4473 to buy a gun at a dealer.

You have incriminated yourself because you have admitted committing a crime. But the use of your admission does not violate your Fifth Amendment right not to be compelled to testify against yourself.

You have the right not to answer the question because you had the right not to buy the gun. Your choice to buy the gun was voluntary, and once you have made that choice you may be required to disclose your record on the 4473. Incriminating answers may be used against you, and you may be prosecuted for giving false answers.

In effect, by choosing to buy a gun you have waived your Fifth Amendment right not to be compelled to testify against yourself. If you want to preserve that right, don't buy the gun. You can not go to jail for not buying a gun.

It's similar to how things work if you're on trial on a criminal charge and testifying on your own behalf.

1. You have a Fifth Amendment right not to testify on your own behalf; and if you choose not to testify, your failure to testify may not be used against you.
   
   
2. However, if you choose to testify, you will be subject to cross examination. In that event, during cross examination, you may not claim the Fifth Amendment privilege to avoid answering any question properly within the scope of cross examination; and if you lie when answering any such question you will still be subject to prosecution for perjury.

And understand that while it's an important personal right the Fifth Amendment privilege against being compelled to testify against yourself has limits. It, like other evidentiary privileges allowing one to resist disclosure, hampers discovering the truth; so they tend to be narrowly applied. For example, see this thread discussing a recent Supreme Court decision narrowing the "right to remain silent."

...The fact is the form specifically, directly asks if you have committed a crime...

Yes it does. So what? You would commit no crime by not buying a gun; and if you don't buy a gun, you don't have to answer the questions.

 

[JohnKSa]

At least the federal Government is not aggressively pushing for inforcement of marihuana laws.

At least the federal Government is not aggressively pushing for inforcement of marihuana laws at this time.

A new administration could change that in a heartbeat.

Are you suggesting that if a plain clothed police officer looks over my shoulder when I check yes on this government form, and uses that as probable cause, I wouldn't have incriminated myself?

By this (incorrect) definition of self-incrimination, virtually any evidence garnered from observing the defendant is self-incrimination.

The fifth amendment doesn't protect you from VOLUNTARILY self-incriminating. It prevents you from being COMPELLED to self-incriminate and/or prevents any information obtained in such fashion from being used against you.

You are not compelled to be in a gun shop like a defendant is compelled to be in court, or an arrestee is compelled to be temporarily incarcerated.

You are not compelled to fill out a 4473 like a witness is forced to tell the truth, the whole truth and nothing but the truth, or like a person who is being beaten is forced to confess to stop the beating.

You have the choice to not be in the shop. You have a choice to not fill out a 4473.

If you CHOOSE to go to a gun shop and CHOOSE to fill out the 4473 and CHOOSE to self-incriminate yourself on the form, then your application will be rejected and you may be subject to prosecution. If someone detains or abducts you and forces you to fill out a 4473, then you would not be liable for anything you put down on the form since you were forced to self-incriminate.

Otherwise you haven't been compelled to do anything. At any time in the process, you are totally free to stop and walk away.