"Legal" Marijuana and Guns

[Frank Ettin]

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....

I believe that your recollection is faulty.

In California one fills out two forms: the federal 4473 and the California Dealer Record of Sale (DROS).

This form of the DROS has no such question. And I've bought many guns in California and have answered no such question on the DROS.

And we've discussed the question on the 4473.

 

[SC4006]

I found an article explaining the current administration's view on Colorado's recent legalization of marijuana.

Article

It appears as though the federal government plans to overlook Colorado legalizing weed for now as they have more important issues to focus on currently. It doesn't appear as though they will overlook it for long though, the president has expressed his views against widespread legalization of the drug.

 

[JimDandy]

His views against it, or his views placating the older population with opposition t widespread legalization? Someone who partakes of something is not going to be particularly opposed to it's legalisation.

 

[orangello]

From post #48:

"This statement:

Quote:

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:

Quote:

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?"

No. I stated what I intended, the current lack of legality of combining cannabis and firearms ownership/transfers under current federal law and the solution that seems to be the most logical/straightforward. No purpose other than to state our position and a logical course to a less complicated/conflicted position (though not one completely free of issues).

 

[dajowi]

"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)."

Granted Ms. Willis could be prosecuted under federal law in violation of 18 USC 922(g) (3). The point is that she hasn't been, and it seems that at this time the federal government isn't going to push the issue.

The last time I renewed my concealed carry license I had a rather spirited conversation with a sheriff's department employee about this very issue. Our county sheriff was issuing licenses to Oregon Medical Marijuana Program enrollees.

So this leaves the question, how can the federal government not view this as a total violation of federal law? And why aren't they acting on it?

 

[csmsss]

So this leaves the question, how can the federal government not view this as a total violation of federal law?

It does.

And why aren't they acting on it?

Because there are more U.S. citizens violating more federal laws than there are U.S. attorneys to prosecute them (not to mention courts, prison cells, etc.).

Law enforcement officials at all levels prioritize the laws they actively enforce, others which they passively enforce, and others which are ignored entirely.

 

[Sierra280]

The federal goverment does enforce marijuana laws. Here at the ski areas in California many people smoke pot, most of them have CA medical cards, but ski areas are on federal land and many, many people have gotten busted this way!

Also, the bigger problem is many states have severe penalties for possessing a gun while carrying drugs (automatic 10yrs in CA for having a gun with drugs) That, and there is still a very big black market for marijuana and it leads to gun crimes. Case in point, a couple years ago a nor-cal medical pot growers home was broken into late at night, his wife called 911. On The tape of the call she said a robber broke into their house and she needed the police, then suddenly she screams, 'he's got a gun!' Then many gun shots. When she spotted the robbers gun, he husband (the grower) unloaded his 45ACP into the robber. Here's the problem: the man was protecting his home from the robber, the robber was there to steal pot, when the man shot the robber he was effectively protecting his pot. I believe the guy wasn't charged, but vice (in this case pot) leads to crime!

 

[amd6547]

"...the robber was there to steal pot, when the man shot the robber he was effectively protecting his pot. I believe the guy wasn't charged, but vice (in this case pot) leads to crime!..."

Which is pretty much the same as a liquor store being robbed, or a convenience store having its cartons of cigarettes taken at the point of a gun.

 

[JD0x0]

Here's the problem: the man was protecting his home from the robber, the robber was there to steal pot, when the man shot the robber he was effectively protecting his pot.

It is medicine, though. I don't have a problem with someone protecting medical cannabis, anymore than I have a problem with an armed security guard protecting prescription medication, or a facility where cancer medicine is held, or something along those lines. If he owns a co-op, he's likely growing that medicine for multiple patients, too. I see nothing wrong with someone protecting their medicine or other people's medicine, within reason. I think the situation, as you stated, was reasonable.
I know of a medical co-op which was robbed, and the police not only returned about 2 lbs, that they had found in the road, but they filed a complete police report. There was a legally obtained shotgun in the house that the police were informed about, which they had no problem with, either. They were state police, so they were following state law, AFAIK.

 

[Sierra280]

I guess the point I was trying to make, was that while federal law prohibits it, it doesn't seem as though there have been any cases of a cannabis user losing their 2A rights because of it. Unless someone can think of a specific case of this happening, there are many examples of legal cannabis users owning firearms. Hell, every medical marijuana card holder I know owns guns!

 

[Tom Servo]

I guess the point I was trying to make, was that while federal law prohibits it, it doesn't seem as though there have been any cases of a cannabis user losing their 2A rights because of it.

That just means they're not busting people right now. Those people are still violating the law. The fact that it just isn't being enforced doesn't meant it won't be in the future.

 

[Frank Ettin]

So much heat and so little light. It's really very simple: A user of marijuana, even if legal under state law, commits a federal felony by possessing a gun or ammunition; and a user of marijuana, even if legal under state law, commits a federal felony if he answers "no" to question 11e on the 4473.

That's it. That's really all there is to it. That's the whole story. It's not a gray area. Perhaps the only issue is how much use and how recent the use must be to be a "user of marijuana" for the purposes of 18 USC 922(g)(3).

...while federal law prohibits it, it doesn't seem as though there have been any cases of a cannabis user losing their 2A rights because of it...

1. They certainly will prosecute "unlawful user with a gun" cases. See post 25:

   ...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...

   
   
2. There is the doctrine of prosecutorial discretion. Prosecutors generally can decide how to use limited resources.
   
   
   • A policy not to prosecute certain crimes is a matter of policy only. It doesn't change the law, and policy can change in an instant.
     
     
   • So if a user of marijuana who wants to have a gun would like to bet up to five years in federal prison and a lifetime loss of gun rights on the mercies (which may or may not be tender) of the local U. S. Attorney, he can be my guest.

 

[HiBC]

Think about who you are trusting to "not enforce." Eric Holder?I do not know his attitude toward pot,but ponder Fast and Furious a while.
I do not think it is any secret,they do not like your guns.

The pot vote brought a lot of useful tools to the polls.

The politics will be carefully played.

Why pull in a net while the fish are still eagerly filling it?

Data is being generated and stored.Security cams,facial recognition,your Visa card,etc.

When the time is right,they probably won't need many resources.Go back and watch the Ruby Ridge/Randy Weaver vids on You tube to see what has been done over a hacksaw job and a $200 tax stamp.

"Well,Cheech,you are in a whole lot of trouble..but maybe we can cut a plea deal here.You give us some names,we get all your guns,you will never own a gun again,but,no jail and only a $5000 fine,how about it?

Then there is the SD shoot and testing positive...

 

[Uncle Buck]

That could be fixed. Congress could amend 18 USC 922(g) to provide that an unlawful user of a controlled substance would not include someone using marijuana under a state medical marijuana law. Or Congress could amend the Controlled Substances Act to provide for the lawful prescribing of marijuana (just as it does for Oxycontin). Or Congress could fix this in a variety of other ways.

In the current political climate, I see this as another third rail. Neither side would be willing to touch it.

Even though, as has been pointed out many times, it is still illegal to check the 'NO' box on the 4473, very few people are being prosecuted, as mentioned out in the below article.

http://www.politifact.com/new-hamps...eople-trying-buy-gun-illegally-us-senator-ke/

Even though the current administration has no plans, or very few, to crack down on the issue of state allowed marijuana laws and guns, nothing is going to preclude another administration at another time to begin the crackdown.

A side note: Folks, I love the discussion and would like to be a fly on the wall if all of you ever got together in one room.

 

[steve4102]

So, if I am a user of Pot living in Colorado, I purchase my pot from a "Legal" grower/vender and the State of Colorado collects a Sales Tax from my Purchase, would I not be considered a legal user?

Basically, how can the State collect a Tax on an Illegal Controlled Substance?

 

[Frank Ettin]

So, if I am a user of Pot living in Colorado, I purchase my pot from a "Legal" grower/vender and the State of Colorado collects a Sales Tax from my Purchase, would I not be considered a legal user?...

No you would not -- under federal law. And the "legal" grower/vendor would be legal only under Colorado law -- not federal law. Read this whole thread. The answer is clearly laid out by multiple posters.

...Basically, how can the State collect a Tax on an Illegal Controlled Substance?

Beats me. Maybe if it bothers someone enough he'll take the State of Colorado to court over the question. It would then be interesting to see what a judge says.

In that case it would be up to Colorado to defend its position.

 

[steve4102]

I did, I read every word and I am not disagreeing with you.

The point I am trying to make is this,

Pot is being grown, bought and sold in Colorado with the blessing of the State. The State is also taxing the sales and production of pot.

Knowing this, would not a "Reasonable" person conclude that pot was Legal when asked if they were an Illegal user of a Controlled Substance regardless of who did the asking? Would not a "reasonable" person answer NO on a State or Medical forum and also on form 4473 with complete confidence that they we not lying.

I know the Laws says otherwise, but isn't lying different than being mislead by your State Government?

I would have to think (sorry), that anyone charged with lying on form 4473 could easily convince a Jury that they answered truthfully, especially if the State is collecting Taxes on the production and sales of pot.

 

[Frank Ettin]

...Knowing this, would not a "Reasonable" person conclude that pot was Legal when asked if they were an Illegal user of a Controlled Substance regardless of who did the asking? Would not a "reasonable" person answer NO on a State or Medical forum and also on form 4473 with complete confidence that they we not lying...

People are still responsible for knowing and conforming their conduct to the law -- both state law and federal law.

Being "reasonable" isn't necessarily enough. The reality is that many things in the law aren't intuitive, and people sometimes need to do some research.

And there is a lot of information out there on this particular question. Certainly it's been discussed on many gun boards and gun blogs, and the right answers have been there. Of course one of the problems with those sources is that there is also some misinformation from people who don't know what they're talking about.

But still there is an abundance of good information on the subject. People simply can not avoid criminal responsibility by being ignorant. For example, you certainly know the right answer at this point.

...I know the Laws says otherwise, but isn't lying different than being mislead by your State Government?...

How has the government of Colorado misled anyone? Again, the information is out there and the law is very clear. No one speaking for the government of Colorado has said anything different.

...I would have to think (sorry), that anyone charged with lying on form 4473 could easily convince a Jury that they answered truthfully, especially if the State is collecting Taxes on the production and sales of pot.

You can think that. But so what? Do you have any legal authority to support that view? Do you have the education, training and experience to back up that opinion?

All opinions are not equal, and a wild notion pulled out of the air isn't worth much. I suspect that anyone who might actually act on your opinion is going to be very disappointed.

 

[steve4102]

How has the government of Colorado misled anyone? Again, the information is out there and the law is very clear. No one speaking for the government of Colorado has said anything different.

By their actions and their words they are misleading the public into believing Pot is legal. The fact that they do not arrest growers,seller and users and the fact that they Tax the production and sales of Pot misleads the public into believing it is legal.

Run a poll, in Colorado or across the entire country and ask how many people think pot is Legal in Colorado.

Betcha get better than 90% say it is.

You can think that. But so what? Do you have any legal authority to support that view? Do you have the education, training and experience to back up that opinion?

Nope, i'm just an average Joe that makes up Juries all across this country every day and that is where my Worthless Uneducated Opinion counts the most.

 

[TimSr]

First off I wonder how many peope have been prosecuted for lying on a 4473. Then I wonder what kind of proof would be required to show that a person was a "user of" at the time they purchased a firearm. Finally, I would wonder as to what constitutes a "user of". Somebody who tried it once in high school? Somebody who quit 10 years ago? Somebody who quit yesterday? Seems to me it would be very difficult to prosecute lying about being "a user of" on a 4473 which is probably why it is seldom done. I also doubt you'll see the feds challenge or prosecute what states have legalized, though it would be an interesting constitutional case concerning what rights are delegated to the states.