"Legal" Marijuana and Guns

[Tom Servo]

Colorado has made it legal to buy, own, and possess marijuana for recreational purposes. Before anybody rushes to spark up the bong and crank up their Dave Matthews records, read on.

Under 18 U.S.C. § 922(g),

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.

In short, smoking pot disqualifies one from owning firearms under federal law. The ATF weighed in on this a couple of years back [pdf], and there have been prosecutions.

Colorado can pass all the laws they want. As per just about every recent court's reading of the Commerce Clause, federal law trumps state law when there's a conflict along these lines.

There is some overlap between gun owners and proponents of marijuana legalization. The latter can get themselves in real trouble if law enforcement decides to look into their lives, so get the word out.

[JD0x0]

Why don't they have the same laws for alcohol and prescription drugs? All or none IMO.

[HiBC]

In addition to the problem of possession of a firearm by a prohibited (pot using) person,(which,if I am not mistaken,is felony )
When you fill out a form 4473,the federal firearms purchase form,you swear before a witness on a Federal affidavit"I am not an unlawful user of or addicted to marijuana or any other controlled substance"

It is a second felony to lie on that affidavit.

Now,since Obamacare federalizes your med records,do you suppose the feds could at some point cross reference medpot cards and 4473's?
Think about all this NSA data gathering.

By accident or design,this Federal grey area,pot is still federally unlawful,and connected to firearm law,is a 2nd amendment trap.

A lot of younger folks who were totally disinterested in politics turned out to vote in Colorado in order to legalize pot.I will leave it to your imagination to figure out who else they voted for.

Our President and Attorney General may not care about pot,but they do not like your guns or your RTKBA.Ends justify means.

A large percentage of young folks will go for getting high.Many are proud to be part of the history of being there,part of it,yeah,man,we got it done!!

So,we are kool like hippies and Woodstock and stuff,yeah!Dylan,dude!Got Cheetos?

As they throw away one of the Civil Rights protected by the Constitution of the United States.

And as this goes on,this trap,hundreds of thousands,maybe millions,as other states legalize(Washington) will toke up.Show ID,maybe pay with Visa,document themselves with the NSA.

When the trap is sprung,and it is ruled none of these folks pass NICS and maybe they have to give up their guns

How will these folks support the 2nd Ammendment they no longer have?

"Well dude,if I can't have a gun,like you shouldn't have one,because its not fair...we all have to be equal...man...I can't find my lighter...hey,you got a lighter?

Yeah,that ain't right,man.Aww,dude,are those Cheetos?

Oh,one more thing,a lot of Federal land in Colorado...The guy in the pickup with the government plates will enforce pot and gun laws...you are in the National Forest or Pawnee National Grasslands or Bureau of Land Management lands...

Hunting or plinking with 22's or just a gun along and Mr Ranger checks you out,and he either has a nose or a dog...

Gee,Yogi,I don't think Mr Ranger is going to like this...dude,ask him if he like Cheetos...Oh,wrong,dude,you ate them all...

THE POINT

Make good choices,take care of yourself.It is your RTKBA.

Another point to ponder....1)Pot and driving is going to be like alchohol and driving2)I have read in 2014 a new DUI law goes into effect in Colorado.If you are pulled over suspected of DUI,currently you can decline BAC testing but,under Implied Consent,you will suffer the penalties of DUI.In 2014,they will be able to get a warrant and take your blood.I assume,if they can take blood,they can take hair.Either will prove you use pot.And,just for fun,they have a DNA sample you donated.Given THC in the blood,recall possessing ammo is prohibited,a 22 casing in your car might be probable cause to get a warrant to search your home for firearms.

This is the direction we are headed,folks.

So,how IS that hopey changy stuff working out?(Yes,George and the Patriot Act etc...both sides of the aisle,bi-partisan problem)

[JERRYS.]

a resident of a state that does not outlaw marijuana use would not be an "unlawful user".

[steveno]

he would be an "unlawful" user in the eyes of the federal government since pot is an illegal substance and the 4473 is a federal form. the state has nothing to do with it

[JohnKSa]

a resident of a state that does not outlaw marijuana use would not be an "unlawful user".

Federal law supercedes state law. Federal law says it's illegal in the U.S. and therefore it is illegal EVERYWHERE in the U.S.

State law may or may not back up federal law, but it doesn't matter. If federal law says it's illegal then it is illegal--REGARDLESS of what state law says.

For example. TX law says that a machinegun is a firearm that fires MORE than 2 shots for each pull of the trigger. Federal law says that a machinegun is a firearm that fires more than 1 shot for each pull of the trigger. So, as a TX resident, if I make a gun that fires 2 shots for each pull of the trigger, I haven't violated TX law. BUT I have certainly violated federal law and although I am guiltless under TX state law, I am still liable to federal prosecution and conviction.

Don't be confused about this issue and don't let your fellow gun owners remain confused. The fact that a particular state doesn't criminalize the use of marijuana does NOT make the use of marijuana legal in that state. It just means that if you are caught and prosecuted, it will be by the federal authorities, not state law enforcement.

[JERRYS.]

so sad.

I'm not condoning smoking weed. I'm saddened by the over reaching authority and stretching of powers the federal government has given itself by virtue of an apathetic electorate.

[Tom Servo]

Let's avoid broader discussions of drug policy, as they're outside the scope of this forum.

It's unclear whether the current administration will take action on the conflict between state and federal law on the possession and usage of marijuana, but the possibility of prosecution is still there. The ATF has made it clear that it remains a crime to possess a firearm if one uses it.

A couple of years ago, several states passed "firearms freedom" laws that conflicted with federal law. We still haven't seen any fallout from those, and the issue seems to have fizzled out.

[thickice]

With the legalization of recreational pot use, the only requirement for an ID is a state (any) issued ID card. Therefore there is no way to cross reference the buyer against any data base.

[Frank Ettin]

Originally Posted by JD0x0

Why don't they have the same laws for alcohol and prescription drugs?...

Well we don't. So what? It is what it is.

Originally Posted by JERRYS.

a resident of a state that does not outlaw marijuana use would not be an "unlawful user".

He would be an unlawful user under federal law.

Originally Posted by thickice

With the legalization of recreational pot use, the only requirement for an ID is a state (any) issued ID card. Therefore there is no way to cross reference the buyer against any data base.

That doesn't change federal law. Note that here we do not encourage or suggest violating the law. And there are all kinds of ways in which folks who violate the law can wind up getting caught.

Here's the bottom line:

1. State law on marijuana 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 prohibited person and commits a federal felony by possessing a gun or ammunition.
   
   
4. 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.

And so, for all of you folks thumping your chests about how wrong this is:

1. The law at present is that someone who is an unlawful user of a controlled substance (including a user of marijuana, even under a state medical marijuana law) is prohibited under federal law from having possession of a gun.
   
   
2. 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.
   
   
3. So have you written you Congressional representatives?

[JERRYS.]

two shea.

[JimDandy]

a resident of a state that does not outlaw marijuana use would not be an "unlawful user".

In State Court. But if you look in the laws of just about every state, on State forms, etc. you'll see the disclaimer that while a state may allow firearms possession to someone, the Federal government may not, and they're usually very good at pointing out that State permission is not a defense to Federal prosecution.

In fact, looking at my state's laws, Regulatory Code of Washington 9.41 Firearms and Dangerous Weapons

I'll quote the exact phrasing I'm talking about:

(5) At the time of applying for the purchase of a pistol, the purchaser shall sign in triplicate and deliver to the dealer an application containing his or her full name, residential address, date and place of birth, race, and gender; the date and hour of the application; the applicant's driver's license number or state identification card number; a description of the pistol including the make, model, caliber and manufacturer's number if available at the time of applying for the purchase of a pistol. If the manufacturer's number is not available, the application may be processed, but delivery of the pistol to the purchaser may not occur unless the manufacturer's number is recorded on the application by the dealer and transmitted to the chief of police of the municipality or the sheriff of the county in which the purchaser resides; and a statement that the purchaser is eligible to possess a pistol under RCW 9.41.040.

The application shall contain a warning substantially as follows:


CAUTION: Although state and local laws do not differ, federal law and state law on the possession of firearms differ. If you are prohibited by federal law from possessing a firearm, you may be prosecuted in federal court. State permission to purchase a firearm is not a defense to a federal prosecution.

Bold and Italics Emphasis mine. So Washington having legalized marijuana MAY not feel it's illegal to smoke pot and own a firearm. They MAY still think so, as marijuana is specifically listed on the form(s) by name.

Why don't they have the same laws for alcohol and prescription drugs?...

Alcohol is a depressant. Depressant is one of the categories in question 11e. I would imagine the primary thing keeping US Attorneys from prosecuting alcoholics for possession/perjury is the political backlash over things not firearms-related like HIPPA principles, and a general impression that people who are a friend of Bill and have been sober for quite some time aren't REALLY still addicted or an unlawful user etc so it would be politically unpopular to prosecute a guy who's been going to meetings for 5 years. So if you're not willing to do that, prosecuting the guy caught drunk and carrying would raise equal protection sleeping dogs they'd prefer to let lie. I suspect anyway.

[Frank Ettin]

Originally Posted by JimDandy

...Alcohol is a depressant. Depressant is one of the categories in question 11e. I would imagine the primary thing keeping US Attorneys from prosecuting alcoholics for possession/perjury is the political backlash over things not firearms-related like HIPPA principles,...

No, what's keeping U. S. Attorneys from prosecuting is what the law is.

The specific condition disqualifying one from possessing firearms is (18 USC 922(g)(3)):

...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));....

And a controlled substance under the Controlled Substances Act (21 USC 802(6), emphasis added) is:

....a drug or other substance, or immediate precursor, included in schedule I, II, III, IV, or V of part B of this subchapter. The term does not include distilled spirits, wine, malt beverages, or tobacco, as those terms are defined or used in subtitle E of the Internal Revenue Code of 1986.

So alcohol is not a controlled substance for the purposes of 18 USC 922(g)(3), and therefore alcohol addiction is not a disqualifying condition.

[Frank Ettin]

Originally Posted by Tom Servo

...A couple of years ago, several states passed "firearms freedom" laws that conflicted with federal law. We still haven't seen any fallout from those, and the issue seems to have fizzled out.

I should mention that there is some ongoing litigation involving the Montana law. Most recently the Ninth Circuit ruled that the Montana law was preempted by federal law.

But we're not discussing "firearm freedom" laws.

[Aguila Blanca]

Originally Posted by JD0x0

Why don't they have the same laws for alcohol and prescription drugs? All or none IMO.

But alcohol and prescription drugs are both legal under federal law ... marijuana is not.

You're comparing apples to turnips.

[JimDandy]

No, what's keeping U. S. Attorneys from prosecuting is what the law is.

The specific condition disqualifying one from possessing firearms is (18 USC 922(g)(3)):

That may very well be, but that isn't what you swear to on a 4473 form. Question 11e reads:

“Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?”

The question does not appear to accurately reflect the prohibited persons flags.

[Frank Ettin]

Originally Posted by JimDandy

That may very well be, but that isn't what you swear to on a 4473 form. Question 11e reads:

The question does not appear to accurately reflect the prohibited persons flags.

The question was no doubt recast to paraphrase the statute in a way intended to be more easily understood by the individual filling out the 4473. If the question merely parroted the statute it would cross reference the Controlled Substances Act. That would be pretty meaningless to the ordinary person.

[Tom Servo]

But we're not discussing "firearm freedom" laws.

I left that one off as a bit of non sequitur. The laws were passed around the idea that states could regulate certain activities irrespective of federal laws. We're seeing something of the same idea here. Of course, given the state's general climate towards the RKBA, I wouldn't see them rushing to defend a test case on these grounds.

Apparently, Colorado recognizes the dissonance. Residents with medical marijuana permits are barred from getting carry permits:

Any person who uses or is addicted to marijuana, regardless of whether his/her state has passed legislation authorizing marijuana use for medicinal purposes, is an unlawful user of or addicted to a controlled substance, and is prohibited by Federal Law from possessing firearms or ammunition.

[Frank Ettin]

I just wanted to head off a side trip down that road.

[WyMark]

It's been well over 30 years since I last toked on the evil weed, but if I still lived in Colorado and wanted to legally purchase and smoke some, I'd still answer "No" to 11e, since I'm not an "unlawful" user.

And since the federal government would have to arrest, try and convict me of something that it's entirely legal to do in Colorado, I'd say the odds are very much in my favor.

[Tom Servo]

I'd still answer "No" to 11e, since I'm not an "unlawful" user.

If you did that, you'd be committing a felony by making a false statement on the form.

Under the legal situation we have now, Colorado has no say in the matter. They can't contravene federal law with one of their own.

[JohnKSa]

And since the federal government would have to arrest, try and convict me of something that it's entirely legal to do in Colorado...

It is not legal in Colorado. It is not legal anywhere in the U.S. because there is a federal law against it.

That absolutely includes Colorado since Colorado is in the U.S. and is therefore under federal jurisdiction.

The only thing that's different in Colorado vs. most other states is that in CO, there is no state law against it. So the state authorities probably won't be coming after you, but the feds will still have every right to arrest and prosecute you for violating federal law.

If federal law says it's illegal, then it's illegal everywhere in the U.S. regardless of what state, county or municipal laws/codes say.

The absence of a state, county, or municipal/law/code against an action can NOT nullify an existing federal law against that action.

A state, country, or municipal/law/code specifically stating that an action is legal can NOT nullify an existing federal law against that action.

To use an obvious example, let's say that there's a city in your state that has a city ordinance stating that murder is legal within the city limits. Would you believe that you could legally kill someone inside city limits? I hope not! There are still state and federal laws against murder, and those state and federal laws still apply within city limits. The city ordinance can not eliminate or nullify those laws. If you were to commit murder in this hypothetical city, you might reasonably expect that the CITY would not attempt to prosecute you for murder, but you should certainly expect to be subject to STATE and FEDERAL prosecution.

In the same way, Colorado does not criminalize the use/sale/purchase of marijuana, but that is irrelevant because there is FEDERAL LAW which criminalizes the use/sale/purchase of marijuana.

Therefore, even in Colorado, anyone who uses marijuana is an illegal user. That is because federal law applies in Colorado and federal law criminalizes the use of marijuana.

...if I still lived in Colorado and wanted to legally purchase and smoke some, I'd still answer "No" to 11e, since I'm not an "unlawful" user.

You would be committing an additional federal felony by lying on the 4473. You would be an "unlawful" user because the use of marijuana even in Colorado is a violation of federal law.

This isn't some abstract discussion about semantics and the fine nuances of legalese, this is about avoiding the commission of federal felonies.

We need to get this straight in our minds and make sure that all our fellow gun owners understand it.

[MrApathy]

What about those legally using marijuana per federal program. Dont recall how many are doing it not many I met one at one time. Last I heard the program was no longer accepting new patients but is doling out marijuana to the few who are still alive and approved.

[JohnKSa]

This source indicates that there are only 4 persons still in the program.

http://www.medicalcannabis.com/patie...-ind-patients/

"To date, only four patients, Barbara Douglass (IA), George McMahon (IA), Irving Rosenfeld (FL) and Elvy Musikka (OR) continue to receive their medication from the federal government..."

Since these 4 persons appear to be using marijuana legally per the federal government, I believe they could answer the 4473 question in the negative without fear of prosecution, assuming that they aren't illegally using any other controlled substances.

[Frank Ettin]

Originally Posted by WyMark

...if I still lived in Colorado and wanted to legally purchase and smoke some, I'd still answer "No" to 11e, since I'm not an "unlawful" user...

Garbage! If you smoke marijuana you are an unlawful user under federal law, and that's what counts.

Originally Posted by WyMark

...And since the federal government would have to arrest, try and convict me of something that it's entirely legal to do in Colorado, I'd say the odds are very much in my favor.

What make you think that the federal government would not prosecute you and could not convict you?

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.

Originally Posted by MrApathy

What about those legally using marijuana per federal program. Dont recall how many are doing it not many I met one at one time. Last I heard the program was no longer accepting new patients but is doling out marijuana to the few who are still alive and approved.

Federal law allows for limited, lawful prescribing of drugs that can't otherwise be lawfully prescribed. It must be done under a formal research protocol and subject to oversight by an Institutional Review Board, as part of the clinical trial and investigation of new and novel drugs and therapies.

Some years ago there was a formal clinical trial conducted with marijuana. The clinical trial has long been over, and there will be no new participants.

However, the last time I looked into the question there were still four participants alive and continuing to receive marijuana on the theory that it would be medically inappropriate to discontinue a treatment regimen once begun under the trial.

Any of those four still alive and using marijuana today are the only lawful users of marijuana in the United States. No one else ever will be unless the law is changed.