The Firing Line Forums

Go Back   The Firing Line Forums > The Conference Center > Law and Civil Rights

Reply
 
Thread Tools
Old June 17, 2010, 02:15 PM   #1
Bartholomew Roberts
Senior Member
 
Join Date: June 12, 2000
Location: Texas and Oklahoma area
Posts: 5,719
Oregon Court of Appeals says medical marijuana no bar to CHL

The Volokh Conspiracy covers and interesting case today. The Jacson county Sheriff in Oregon had denied a concealed carry permit to a Oregonian who was a medical marijuana user on the basis that the Federal law prohibiting such users from possessing a handgun preempted the Oregon state law.

The Court of Appeals upheld the the circuit court's reasoning that the CHL does not permit a person to carry a handgun - that right flows from the Oregon constitution. All the CHL does is remove the criminal liability from carrying one concealed. As a result, issuance of a CHL is not in conflict with Federal law and the Sheriff must issue the permit.

Interesting angle.
Bartholomew Roberts is offline  
Old June 17, 2010, 02:34 PM   #2
Frank Ettin
Staff
 
Join Date: November 23, 2005
Location: California - San Francisco
Posts: 6,916
So you wind up with the anomaly that our medical marijuana user now has an Oregon CHL and so may carry a handgun concealed without violating Oregon law. BUT, he is a prohibited person under federal law, and therefore commits a federal felony by merely possessing a handgun.
Frank Ettin is offline  
Old June 17, 2010, 04:16 PM   #3
vranasaurus
Senior Member
 
Join Date: November 16, 2008
Posts: 1,175
Quote:
So you wind up with the anomaly that our medical marijuana user now has an Oregon CHL and so may carry a handgun concealed without violating Oregon law. BUT, he is a prohibited person under federal law, and therefore commits a federal felony by merely possessing a handgun.
Exactly.

18 USC 922 (g)(3) says it is 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 possess a firearm.

THC is a schedule I drug. Schedule I drugs may not be prescribed under federal law. Therefore a prescription for marijuana does not render someone a lawful user of marijuana.
vranasaurus is offline  
Old June 17, 2010, 06:14 PM   #4
kodiakbeer
Junior member
 
Join Date: April 10, 2010
Location: Kodiak, Alaska
Posts: 791
Recreational marijuana is legal in Alaska (as well as medical marijuana), and so is concealed carry without a permit.

People still fall afoul of federal laws, but are clean under Alaska law.

I guess an interesting case would be somebody convicted of felony possession under federal law and then arguing that he should be able still carry under Alaskan law.

In fact, I'd like to see such a case go to the Supreme Court on 10th Amendment grounds. A win might free the states from a lot of federal interference.
kodiakbeer is offline  
Old June 17, 2010, 06:17 PM   #5
andrewstorm
Junior member
 
Join Date: October 4, 2009
Posts: 198
sovernty vs rights

states have the right to self rule things related to intrastate commerce,interstate commerce,or fed regs,can only be inforced in federal court or state cort binds you over for us district court, this tug o war has allways exsisted even as early as the colonys just another way for the layers to pocket 500 per hr ,the taxations there, but wheres the representaion.
andrewstorm is offline  
Old June 18, 2010, 08:11 AM   #6
Bartholomew Roberts
Senior Member
 
Join Date: June 12, 2000
Location: Texas and Oklahoma area
Posts: 5,719
Yes, the result is a bit anomalous and probably not all that useful to the permit holder; but the way the court did the analysis was interesting I thought. I think it bodes well for future RKBA cases in ORegon.
Bartholomew Roberts is offline  
Old June 18, 2010, 11:09 AM   #7
KyJim
Senior Member
 
Join Date: July 26, 2005
Location: The Bluegrass
Posts: 7,756
An ambitious federal agent might obtain a search warrant of the guy's home and charge the guy if they find a gun. I certainly wouldn't take the chance by applying for a CHL.
__________________
Jim's Rules of Carry: 1. Any gun is better than no gun. 2. A gun that is reliable is better than a gun that is not. 3. A hole in the right place is better than a hole in the wrong place. 4. A bigger hole is a better hole.
KyJim is offline  
Old June 18, 2010, 06:51 PM   #8
andrewstorm
Junior member
 
Join Date: October 4, 2009
Posts: 198
the exclusionary law? gone to pot ?

If the courts drop the standard threshold for reasonable cause we are all screwed,and i think medical potposession,does not constitute probobale cause,to issue a warrant,they could only ask to search, your right to privacy of medical information,is not just gone,cause u got a card for med mary jane,the laws on med pot need case history to evolve as in mich.also feds give cards for med pot,and its illeagel in d.c.also the key word is unlawful user,in the fed statue,once u r issued a card you become a lawfull user, remember only users who are perscribed pot are exzempt

Last edited by andrewstorm; June 18, 2010 at 06:57 PM.
andrewstorm is offline  
Old June 18, 2010, 10:11 PM   #9
KyJim
Senior Member
 
Join Date: July 26, 2005
Location: The Bluegrass
Posts: 7,756
andrewstorm said:
Quote:
something incomprehensible
Your message is lost on me and, I'm sure, a lot of others.
__________________
Jim's Rules of Carry: 1. Any gun is better than no gun. 2. A gun that is reliable is better than a gun that is not. 3. A hole in the right place is better than a hole in the wrong place. 4. A bigger hole is a better hole.
KyJim is offline  
Old June 19, 2010, 12:07 AM   #10
Frank Ettin
Staff
 
Join Date: November 23, 2005
Location: California - San Francisco
Posts: 6,916
Quote:
Originally Posted by KyJim
andrewstorm said:
Quote:
something incomprehensible
Your message is lost on me and, I'm sure, a lot of others.
I'm definitely with you on this, at least for the most part. However, he did say....
Quote:
Originally Posted by andrewstorm
...the key word is unlawful user,in the fed statue,once u r issued a card you become a lawfull user,...
And while I understand what he wrote, he is completely wrong.

One might he a lawful user under state law. But one can not be a lawful user under federal law. Under federal law, marijuana is a Schedule I controlled substance and may not be lawfully (under federal law) prescribed.

So a person who may be lawfully using marijuana under a state medical marijuana law is still an unlawful user under federal law and therefore a prohibited person under 18 USC 922(g)(3).
Frank Ettin is offline  
Old January 17, 2012, 09:47 AM   #11
Bartholomew Roberts
Senior Member
 
Join Date: June 12, 2000
Location: Texas and Oklahoma area
Posts: 5,719
Just an update, this case was appealed to SCOTUS, who denied cert on it.
http://www.necn.com/01/11/12/US-high...9a68787a427e86

So in Oregon, medical marijuana patients can obtain a concealed handgun permit; but cannot legally purchase a handgun under state law or legally possess a handgun under federal law.
Bartholomew Roberts is offline  
Old January 17, 2012, 10:06 AM   #12
Frank Ettin
Staff
 
Join Date: November 23, 2005
Location: California - San Francisco
Posts: 6,916
I suspect that SCOTUS didn't see any reason to get involved in this mess. It's hard to decide what this case is about. Is it about prohibited persons? Is it about marijuana? Is it about state law federal law disconnect? Muddled cases often don't turn out well.

So now the Oregon medical marijuana user carrying a gun with a CHP might not get arrested by the cops or sheriff, tried in state court and sent to state prison; but he still get to be arrested by the FBI or DEA, tried in federal court and sent to federal prison.
Frank Ettin is offline  
Old January 17, 2012, 05:10 PM   #13
Aguila Blanca
Senior Member
 
Join Date: September 25, 2008
Location: CONUS
Posts: 6,686
What would be even more interesting (in an arcane, legalistic way) would be if the person with a prescription for medical use of marijuana managed to obtain a firearm that was made entirely within his/her state of residence, thereby skirting any claim of Federal jurisdiction by virtue of interstate commerce. Of course, more than likely even someone with his own machine shop and the plans for a 1911 would have to buy something from out of state, rendering the entire exercise moot.
Aguila Blanca is offline  
Old January 17, 2012, 05:43 PM   #14
Don H
Senior Member
 
Join Date: May 8, 2000
Location: SLC,Utah
Posts: 2,705
Gonzales v. Raiche pretty much reaffirmed (Wickard v. Filburn) that the product/object doesn't have to cross state lines to affect interstate commerce and thus be liable to federal regulation.
Don H is offline  
Old January 17, 2012, 05:44 PM   #15
Bartholomew Roberts
Senior Member
 
Join Date: June 12, 2000
Location: Texas and Oklahoma area
Posts: 5,719
Well considering that Gonzales v. Raich was about completely intrastate medical marijuana and found the intertstate commerce clause extended that far in a 6-3 decision, I don't think I'd want SCOTUS to explore that legal angle.

IIRC, Stevens is the only Justice gone from the majority in Raich and Thomas is the only Justice left from the dissent. Next time around we might not do as well as 6-3.
Bartholomew Roberts is offline  
Old January 17, 2012, 09:52 PM   #16
Aguila Blanca
Senior Member
 
Join Date: September 25, 2008
Location: CONUS
Posts: 6,686
Yes, I know ...

As a descendant of a Supreme Court Justice, I find it extremely disappointing when the SCOTUS engages in exercises of tortured logic. "It affects interstate commerce because by not engaging in interstate commerce they altered the pattern of interstate commerce" is about as tortured as you can get.

Until you read Kelo.
Aguila Blanca is offline  
Reply

Thread Tools

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is Off

Forum Jump


All times are GMT -5. The time now is 08:05 AM.


Powered by vBulletin® Version 3.8.7
Copyright ©2000 - 2014, vBulletin Solutions, Inc.
This site and contents, including all posts, Copyright © 1998-2014 S.W.A.T. Magazine
Copyright Complaints: Please direct DMCA Takedown Notices to the registered agent: thefiringline.com
Contact Us
Page generated in 0.09244 seconds with 9 queries