[Frank Ettin]

Originally Posted by dajowi

There are 19 states, (including the District of Columbia) which allow physicians to prescribe cannabis for their patients.

Current ATF rules state: "...any person who is a current user of a controlled substance in a manner other than as prescribed by a licensed physician..."
.....

Presently there are two states (Colorado and Washington) which have legalized the possession and use of a "controlled substance," (marijuana), how many more states to follow?

So which is going flinch first...federal law...or state law?

The marijuana issue has been discussed fairly extensively on this board -- including here, here, here, here, here, here, here and here.

Here's the bottom line:

1. With regard to buying a gun from a dealer or possessing a gun or ammunition, state law is irrelevant.
   
   
2. Under federal law (the Controlled Substances Act, 21 USC 801, et seq.), marijuana is a Schedule I controlled substance which may not, therefore, be lawfully prescribed or used. Therefore, any user of marijuana, even if legal under state law, is, under federal law, an unlawful user of a controlled substance.
   
   
3. Under federal law, a person who is an unlawful user of a controlled substance is prohibited from possessing a gun or ammunition (18 USC 922(g)(3)). Therefore, any one who is a user of marijuana, even if legal under state law, is a prohibit person and commits a federal felony by possessing a gun or ammunition.
   
   
4. Under federal law, anyone who is a user of marijuana, even if legal under state law, is an unlawful user of a controlled substance and must answer "yes" on the form 4473 to the question about being addicted to or the unlawful user of a controlled substance.
   
   
5. An "unlawful user of a controlled substance" is defined in ATF regulations, in pertinent part, as follows (27 CFR 478.11, emphasis added):

   ....Unlawful user of ... any controlled substance. A person who uses a controlled substance and has lost the power of self-control with reference to the use of controlled substance; and any person who is a current user of a controlled substance in a manner other than as prescribed by a licensed physician. 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; multiple arrests for such offenses within the past 5 years if the most recent arrest occurred within the past year; or persons found through a drug test to use a controlled substance unlawfully, provided that the test was administered within the past year....

6. As defined, it is not necessary that one be using marijuana at a particular instant to be an unlawful user. As set out in the federal regulation defining "unlawful user":

   ...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...

7. Furthermore, the regulation provides:

   ...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....

8. The regulation further provides that (emphasis added):

   ...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...

9. Making a false statement on the 4473 or being a prohibited person in possession of a gun or ammunition is punishable by up to five years in federal prison and/or a fine. And since it's a felony, conviction will result in a lifetime loss of gun rights.

Originally Posted by dajowi

...Congress’s ability to compel the states to enact similar criminal prohibitions, to repeal medical marijuana exemptions, or to direct state police officers to enforce the federal law remains limited by the Tenth Amendment...

But one may still be arrested by federal agents, tried in federal court and sent to federal prison.

Originally Posted by dajowi

...The ATFE or federal government apparently hasn't responded with criminal indictments against anyone...

1. It's all about the doctrine of prosecutorial discretion. Prosecutors generally can decide how to use limited resources.
   
   In some cases a policy decision to back off of certain types of crimes might be driven by a conclusion that enough people, particularly among the current administration's constituency, find the conduct relatively benign. That might not be the case with other matters.
   
   To put some flesh on those bones, I can see the appeal to the current administration of soft peddling recreation marijuana prosecutions in State which have decriminalized it. And I can accept that the current administration could reasonably conclude that it has adequate political cover to support that policy decision. But if the subject were a matter about which the current administration's constituency was likely to feel differently, e. g., guns, I don't think we could count on the same level of prosecutorial forbearance.
   
   
2. And looking at the marijuana issue, the Obama administration might have a policy not to vigorously enforce federal controlled substance law with respect to recreational marijuana use. That doesn't mean that the Obama administration isn't going to vigorously enforce federal gun laws with regard to persons who are unlawful users of a controlled substance and who are unlawfully, under federal law, in possession of a gun.
   
   
3. A a month or so ago I did a quick search of federal appellate court decisions in a legal data base I subscribe to and quickly found more than 50 cases apparently involving convictions for being an unlawful user of a controlled substance in possession of a gun. Those were just appeals, and there were probably more; but I didn't see any point to spending any more time on it.
   
   
4. Gun control is also on pretty much everyone's radar. There is considerable public pressure for increased gun control and enforcement of existing laws -- especially among Obama's core constituency.
   
   
5. And the fact that there's a current policy to "soft peddle" federal prosecution of recreational marijuana use doesn't necessarily mean that will be the policy tomorrow.
   
   
6. And in any case there has been considerable recent federal activity in connection with the dispensing and cultivation of marijuana under state medical marijuana laws. See --
   
   
   • "Obama Explains Increasing Medical Marijuana Crackdowns, Raids..."
     
     
   • "U.S. raids L.A. marijuana shops..."
     
     
   • "Southern Oregon medical marijuana farm raided by federal drug agents..."
     
     
   • "2 Anaheim pot shops raided,..."
     
     
   • "Sacramento marijuana dispensary latest target of federal crackdown"