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January 10, 2014, 11:54 AM | #76 | ||
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In that case it would be up to Colorado to defend its position.
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January 10, 2014, 12:32 PM | #77 |
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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. |
January 10, 2014, 01:02 PM | #78 | |||
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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. Quote:
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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.
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"It is long been a principle of ours that one is no more armed because he has possession of a firearm than he is a musician because he owns a piano. There is no point in having a gun if you are not capable of using it skillfully." -- Jeff Cooper |
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January 10, 2014, 01:29 PM | #79 | ||
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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. Quote:
Last edited by steve4102; January 10, 2014 at 01:36 PM. |
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January 10, 2014, 01:54 PM | #80 |
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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.
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January 10, 2014, 03:27 PM | #81 | ||||||||||
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People might well be drawing the wrong conclusions from the perfectly appropriate actions of Colorado authorities. Quote:
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That doesn't mean that the occasional jury might not let the ignorant defendant (with the heart of gold) off. But it does mean that one would be foolish to count on it. Quote:
I didn't bother to identify those involving lying about drug use, but clearly the federal government does prosecute violations of 18 USC 922(a)(6). But the federal government also prosecutes "unlawful user with a gun" cases. See post 25:
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And in U.S. v. Burchard, 580 F.3d 341 (6th Cir., 2009) the Sixth Circuit found that (at 355): would support conviction under 18 USC 922(g)(3). Here's the bottom line:
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In any case, the feds haven't been giving marijuana a complete pass; for example see --
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January 11, 2014, 12:10 AM | #82 | |
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There is also no requirement that a state must educate its residents as to the difference between federal and state law, nor as to how federal jurisdiction applies at the state level. Furthermore, there is nothing misleading about the fact that state law does not mirror federal law. Although there can be overlap, it is often the case that state and federal law differ significantly. I gave the example earlier in the thread about the difference between the Texas legal definition of a machine gun and the Federal legal definition of a machine gun. The fact that the TX definition does not mirror the Federal definition may be confusing to some, but there is no rational basis for saying that TX is trying to mislead the public by having a different definition. It just means that they have a different definition. One might as well argue that because a city does not have an ordinance against murder that they are trying to mislead the public into believing that murder is legal.
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January 11, 2014, 07:49 AM | #83 | |
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Frank Ettin (post 10) and Tom Servo (post 43) have both said that rescheduling marijuana would require federal legislation.
Several sources say that the executive branch can also reschedule drugs. http://www.csmonitor.com/USA/Politic...e/%28page%29/2 Quote:
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January 11, 2014, 12:04 PM | #84 | |||
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Under the Controlled Substances Act, the Attorney General may add a drug to, or remove a drug, from a Schedule or change a drug's scheduling. A detailed, complicated and formal procedure must be followed (21 USC 811): Whether the result of this process as currently set out in the controlling statutes would result in a reclassification of marijuana which might resolve the particular conundrum being discussed in this thread is unknown.
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"It is long been a principle of ours that one is no more armed because he has possession of a firearm than he is a musician because he owns a piano. There is no point in having a gun if you are not capable of using it skillfully." -- Jeff Cooper Last edited by Frank Ettin; January 11, 2014 at 01:39 PM. Reason: correct typo |
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January 26, 2014, 10:17 AM | #85 |
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In an ATF Open letter to all FFL, http://www.atf.gov/files/press/relea...l-purposes.pdf . the ATF clearly states that anyone using Medical Marijuana Must Answer Yes to question 11e. They also State that a Medical user cannot purchase or possess a Firearm or Ammunition.
That's what the ATF says, the Us Supreme Court Says otherwise. According to this article the US Supreme Court has refused to hear Jackson County Sheriff Mike Winter's legal challenge that asserted U.S. law trumps Oregon law. According to the Article, Winter's denied Cynthia Willis a Carry Permit on the grounds that she was a user of Medical Marijuana. Winters has lost every court case so far — in Jackson County Circuit Court, the Oregon Court of Appeals and the Oregon Supreme Court. Winters appealed to the U.S. Supreme Court in July, The US Supreme Court refused to hear his case letting the Lower Court Rulings Stand. That ruling is that the ATF is Wrong and users of Medical Marijuana are not bared from owning Firearms, Ammunition and even carry permits. http://www.mailtribune.com/apps/pbcs...NEWS/201110317 |
January 26, 2014, 10:25 AM | #86 | ||
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January 26, 2014, 10:45 AM | #87 |
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So, what is correct? By the Supreme Court refusing to hear Sheriff Winter's case, the Lower Court ruling Stands and Ms Willis gets her Gun and Her Permit even though she is an Admitted user of Medical Marijuana.
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January 26, 2014, 12:05 PM | #88 | |||||
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So what did the Oregon Supreme Court actually say? 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): 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). Oh, and by the way, I laid that out in this very thread back in post 56, so you haven't even been bothering to follow this discussion. Quote:
But the Oregon Supreme Court did note that (at 1066) that its ruling:
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"It is long been a principle of ours that one is no more armed because he has possession of a firearm than he is a musician because he owns a piano. There is no point in having a gun if you are not capable of using it skillfully." -- Jeff Cooper Last edited by Frank Ettin; January 26, 2014 at 12:15 PM. |
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January 26, 2014, 12:08 PM | #89 | |
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Tom, thank you for that link. The Wikipedia article finally explains where the hole is in the government's logic. I still don't accept the notion that by growing and using something yourself it is deemed to be "interstate commerce" because it has the effect of affecting interstate commerce. But this goes beyond that:
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I am not volunteering to be the test case ... |
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January 26, 2014, 12:49 PM | #90 | |
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You apparently did NOT read my post, because if you Had you would have read this... "According to the Article". From the "Article". Concealed handgun owners with medical marijuana cards will be allowed to keep their licenses following the U.S. Supreme Court's decision not to hear Jackson County Sheriff Mike Winter's legal challenge that asserted U.S. law trumps Oregon law. So, as I posted before, According to The "Article", the ATF cannot deny a user of Medical Marijuana a firearm or ammunition. Take it up with the author, if you wish. |
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January 26, 2014, 12:59 PM | #91 | |
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And if you had understood that the article was wrong, why were you bringing us misinformation?
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January 26, 2014, 01:09 PM | #92 | |
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I came here for experts like yourself yo clarify and to comment. Sorry! I'll know better next time. A simple read post #56 would have been sufficient to set me straight doncha think? Have a nice day! |
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January 26, 2014, 01:15 PM | #93 | ||
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January 26, 2014, 08:11 PM | #94 | ||
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Until that doctrine is reversed, states can't "legalize" marijuana any more than they can authorize their citizens to act in defiance of federal firearms laws. Quote:
That's why we've got to be really careful on stuff like this.
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January 26, 2014, 10:15 PM | #95 | |
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I missed this before:
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January 28, 2014, 07:10 PM | #96 |
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I got into a discussion about Medical Marijuana and Firearms possession and was bombarded with claims of Un-constitutional etc.etc. Here is just one of the comments I received pertaining to Medical Marijuana and "Prohibited Persons".
Do any of his comments have merit or is his bucket without a bottom? The fact remains that any declaration that someone is a "prohibited person" without that individual having the opportunity to argue his case before a judge is unconstitutional. It is a violation of the due process clauses of the 5th and 14 amendments. Also the requirement that a person answer the questions on form 4473 section 11 is potentially a violation of the 5th amendment protection against self incrimination. Prior to the Heller ruling there was a question as to whether the right of an individual to keep and bear arms was protected by the 2nd amendment. Post Heller, we know that the individual right to keep and bear arms is protected, and as such any legislative restrictions on that right that do not involve due process of law are unconstitutional. You'll also note that 18 U.S.C. 922 (d) applies to the transferor of a firearm, not the transferee. Even if this statute were lawful, it does not prohibit a pothead from owning a firearm, it prohibits a person from knowingly transferring a firearm to a pothead. Specifically, it is a restriction on the selling FFL, not on the potential owner. If I were a pothead (which I am not) and was refused the sale of a firearm by an FFL due to my refusal to answer the questions in section 11 of form 4473, I could simply buy a firearm from a private individual, and keep my mouth shut during the transaction that I was a pothead. Going this route, no federal law has been broken regarding the transfer or ownership of the firearm. FFL's have have "opted in" to regulations that do not apply to private citizens (form 4473, etc). The letter you posted from the BATFE was to FFL's, not individual persons. Currently MN 624.713 Subd 1.(10)(iii) does prohibit a person who is an unlawful user of any controlled substance from owning a pistol or "semi-automatic assault rifle". This is also unconstitutional as again there has been no due process of law on the restriction of the right. However, in your hypothetical scenario where MN decriminalizes the medical use of marihuana, a person with a prescription would no longer be an unlawful user under state law. A pothead would be able to purchase a pistol from a non-FFL without any state or federal firearms laws being broken, provided he didn't notify the seller he was a pothead. This, despite the fact that both state and federal law are in violation of multiple protections in the bill of rights. I have no standing (nor the funding necessary) to challenge the notion of "prohibited persons" because I don't fall into any of the prohibited person categories. There is no reason for me to not fill out section 11 of form 4473, as I am not incriminating myself in any way by doing so. At some point in the future, depending on the outcome of the next election or two, and the makeup of the courts, I would expect a challenge to the constitutionality of denying a person sale or ownership of a firearm without due process of law. Hopefully the courts will rule appropriately and honor the protections guaranteed the people in the bill of rights. I am not a lawyer and don't advocate anyone break the law. If a pothead or other "prohibited person" wishes to own a firearm without breaking the law (other than being a pothead in the first place), I suggest you contact a lawyer. What I specifically am advocating is that we all understand the law, and recognize that both state and federal firearms laws are in violation of our constitutional protections. |
January 28, 2014, 08:24 PM | #97 | ||
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I wrote about this on another forum, and I got the Firehose of Righteous Indignation for it. It may not be right (I don't think it is), but the law is clear. I'm sorry this isn't what many people want to hear, but there's no magical loophole, and the various state laws don't change the federal situation. The problem is, guys like the one you're debating could very well get someone thrown in jail with bad advice. We'll probably see a test case very soon when someone makes the mistake of trying to board a plane or cross state lines with "legal" marijuana.
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January 28, 2014, 08:43 PM | #98 | ||||||||||
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Now if the U. S. Attorney want to throw that person in jail for being a prohibited person in possession of a firearm, then the U. S. Attorney must get an indictment and afford him due process. Quote:
BUT 18 USC 922(g)(3) prohibits anyone who is an unlawful user of a controlled substance from possessing a gun or ammunition. Quote:
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January 28, 2014, 08:55 PM | #99 |
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Why don't you ask someone who lives in Alaska?
From my understanding, around 50% of Alaskans smoke in some capacity and 90% of own firearms. You don't have to be a rocket science to know that the 2 circles overlap. Also, do you think people haven't been doing both forever, whether the substance is legal or not, lol. Sometimes the ignorance on this subject is comical. Everyone is freaking out over nothing at all. -Robb ps Im more afraid of people on Xanax and Zoloft with guns than Cheech and Chong |
January 28, 2014, 09:04 PM | #100 | |||
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