Pot Conviction Can't Stop Gun Ownership

steve4102 · April 21, 2014, 08:55 PM

A US District Court Judge ruled that two Massachusetts men still have their 2nd Amendment rights to own Firearms despite previous Marijuana convictions.

He ruled the portion of the Mass, Gun Control Act that prohibits Gun Ownership to those convicted of possession of a Controlled Substance Unconstitutional.

http://bostonherald.com/news_opinion..._gun_ownership

If a Federal Judge ruled this Unconstitutional on the State Level, would it not be Unconstitutional on the Federal Level also?

kilimanjaro · April 21, 2014, 09:29 PM

When ruled by a Federal Court addressing Federal law, and upheld by the Supreme Court if appealed, the answer would then, and only then, be yes.

Until then, only in Massachusetts, and only as far as the court ruled.

steve4102 · April 21, 2014, 09:43 PM

The State laws is Unconstitutional in Mass, but the Federal Laws deeming these two "Prohibited Persons" still applies, even in Mass.?

**Aguila Blanca** · April 21, 2014, 09:57 PM

To further muddify the waters, the way the article explains it the judge didn't toss the MA state law, he basically just said, "Ignore it for weed, because you [the State] are backing down on how tough you want to be about it."

What was that definition of "mugwump" again?

KyJim · April 21, 2014, 10:01 PM

You really can't tell much about what is going on from the linked article. However, I would just observe that a conviction for simple possession is probably a misdemeanor. A past conviction does not necessarily mean the person is currently an unlawful user of or addicted to marijuana. Form 443 asks, "Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?" I mean how many people smoked pot in this country when they were young but were never addicted and don't currently use?

steve4102 · April 21, 2014, 11:22 PM

If you have a Conviction for Illegal Possession of a Controlled Substance, are you considered and "Unlawful User" and therefor a "Prohibited Person"? IF so, for how long?

jimbob86 · April 21, 2014, 11:29 PM

Quote:

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

If strictly applied, there'd be a huge number of people DQ'd for caffeine addiction (coffee/cola) .....

steve4102 · April 21, 2014, 11:44 PM

Quote:

If strictly applied, there'd be a huge number of people DQ'd for caffeine addiction (coffee/cola) .....

NO, Coffee and Caffeine and NOT controlled Substance.

http://en.wikipedia.org/wiki/Controlled_Substances_Act

http://www.deadiversion.usdoj.gov/schedules/

Buzzcook · April 22, 2014, 12:12 AM

For those convicted under state law of marijuana possession in the two state where marijuana is now legal; it is my understanding that those convictions will be removed from their records.

So it is possible that with no state record of conviction there is then no grounds for federal refusal of a purchase.

I also wonder about those states where marijuana has been decriminalized or is a misdemeanor. If there is no conviction with punishment being administrative, does that count as a conviction to the feds?

**Frank Ettin** · April 22, 2014, 12:20 AM

This looks like much ado about nothing.

It appears that this Massachusetts case involved a federal trial court's ruling regarding the effect of very old marijuana possession convictions as disqualifying conditions under a particular Massachusetts firearms law.

It appears from the minimal information in the article that under Massachusetts law anyone who had ever been convicted of a drug possession offense was disqualified from possessing a gun -- perhaps even if the crime was a misdemeanor. The federal judge did not rule that law unconstitutional. He only found it unconstitutional as applied here.

A user of marijuana is still prohibited under federal law from possessing guns or ammunition, even if marijuana use is legal under state law. And a convicted felon is also under federal law prohibited from possessing guns or ammunition.

JimDandy · April 22, 2014, 09:08 AM

I can't say as to the State law, but Federal law is fairly detailed on what the unlawful user/addicted part covers, by referring to some legalese about Scheduled drugs as defined in another section as I recall.

Sierra280 · April 22, 2014, 11:46 AM

Looks like the 443 form may be getting some wording changes in the not too distant future. CO and WA have made pot no more illegal than alcohol, and with the vast number of people around here and in CA with 'medical' marijuana cards, this is becoming a very slippery slope.

Just like alcohol, as long as a person is not under the influence while shooting or handling a gun, I don't really see the problem. Maybe we can setup a separate station at the range with free Funions and Ruffles to separate out any canabis users.

JimDandy · April 22, 2014, 11:55 AM

Being legal in WA/CO doesn't make it legal in NY, CA, or even WA/CO as long as it's illegal federally. The 4473 form could use an update, but there isn't an impetus for it based on WA/CO law changes.

**Frank Ettin** · April 22, 2014, 12:14 PM

Quote:

Originally Posted by Sierra280

Looks like the 443 form may be getting some wording changes in the not too distant future. CO and WA have made pot no more illegal than alcohol, and with the vast number of people around here and in CA with 'medical' marijuana cards, this is becoming a very slippery slope...

All completely irrelevant. Marijuana and marijuana use is illegal under federal law. It will remain illegal under federal law unless/until it is rescheduled under the Controlled Substances Act.

And as long as marijuana and marijuana use remain illegal under federal law, anyone using marijuana, even if legal under state law, is an unlawful user of a controlled substance and therefore a prohibited person under 18 USC 922(g)(3).

**Tom Servo** · April 22, 2014, 12:18 PM

OK, we're looking at two separate things here.

The law under review by the court is a Massachusetts law, specifically § 131(d)(i)(e), which denies ownership of guns on the basis of "a violation of any law regulating the use, possession or sale of controlled substances as defined in section 1 of chapter 94C."

The case is Wesson v. Town of Salisbury. More from Volokh here.

This does not invalidate § 922(g)(3), which is a federal prohibition. It actually dovetails with it. Under 27 CFR 478.11,

Quote:

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.

Both plaintiff's convictions occurred quite a while ago, and with no recent violations. As such, they wouldn't be disqualified under federal law if they haven't been using in the last few years. The prohibition under review was a stricter one enacted on the state level.

JimDandy · April 22, 2014, 12:23 PM

It's part of our dual sovereignty system. Both levels have to legalize (or not have criminalized it) to make a thing legal.

Washington has legalized it (more or less- some conduct with it hasn't been legalized) so the state and lower police won't enforce some things no longer on the books. But the Federal agencies still can, and may or may not. The States had a lot of negotiating, and probably still more yet to do, with the Federal Government on what they would and wouldn't relax in other areas. Banking/Tax laws was one area on the news recently- something about not being able to claim rent paid on the square footage used to sell the marijuana itself.

I mention this to illustrate the point. We've already had at least one home invasion of a grower end in gunfire. Frank or one of the others can correct me if I'm wrong- but the State may have found that to be self defense. The Federal government could probably still arrest and try him for possessing controlled substances and firearms at the same time.

Sierra280 · April 22, 2014, 08:26 PM

^^I believe that incident was in California. It was ruled as self defense, but even CA has minimum mandatory sentencing when it comes to drugs + guns. Very murky territory.

steve4102 · April 22, 2014, 10:38 PM

^^ Maybe Washington State.

Mr Loken was a Medical Grower and was attack in his home. He used his handgun to defend himself and is now charged with Manufacturing Marijuana and using a Gun during a drug trafficking Crime.

http://www.seattlepi.com/local/artic...683.php#page-1

HiBC · April 23, 2014, 05:41 AM

My take,which may be ...cynical.

Given current administration's history,from "choom Gang" to Al Sharpton's recently revealed cocaine issues,drug use,by itself,seems to be a very low priority issue at this time.State legalization seems to soften things further.

The "look the other way" thing seems to be the code of the day.

But,doggone,the current administration hates your guns.Ends justify the means.

Might legaliziong pot be a useful "get out the vote" tool?I think so.Its politically useful.

And,the vague,discretionary enforcement thing?Well,the net is in the water,and thousands,millions,maybe,of fishes are swimming into it.No need to spring the trap yet.Just let the naïve keep swimming in.They leave a data trail.A med pot card...I love the vending machine idea,just pop in your driver's liscense.

Then later,when the net is bulging full,you announce to the prohibited persons they have given up 2A.

Naw,they wouldn't do that...would they?

USAFNoDak · April 23, 2014, 07:51 AM

If you live in a state where pot is now legalized, then you would not be lying if you answered that you were NOT an "illegal" user of marijuana on the 4473 form. It seems that would be a slam dunk for a lawyer defending someone in Colorado, for example. This will get interesting.

JimDandy · April 23, 2014, 08:31 AM

You may not be lying, but you would be wrong.

Quote:

Originally Posted by 18 U.S. Code § 922

(3) 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));

Neither Washington nor Colorado has changed 21 USC 802. Nor even has the authority to do so.

**Frank Ettin** · April 23, 2014, 08:53 AM

Quote:

Originally Posted by USAFNoDak

If you live in a state where pot is now legalized, then you would not be lying if you answered that you were NOT an "illegal" user of marijuana on the 4473 form. It seems that would be a slam dunk for a lawyer defending someone in Colorado, for example. This will get interesting.

Absolutely 110% wrong.

State law on marijuana is irrelevant.
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.
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, anyone 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.

Federal law defines "unlawful user" as follows (27 CFR 478.11):

Quote:

Unlawful user of or addicted to 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. For a current or former member of the Armed Forces, an inference of current use may be drawn from recent disciplinary or other administrative action based on confirmed drug use, e.g., court-martial conviction, nonjudicial punishment, or an administrative discharge based on drug use or drug rehabilitation failure.

And in U.S. v. Burchard, 580 F.3d 341 (6th Cir., 2009) the Sixth Circuit found that (at 355):

Quote:

...the regular use of a controlled substance either close in time to or contemporaneous with the period of time he possessed the firearm...

would support conviction under 18 USC 922(g)(3).
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.

Armorer-at-Law · April 23, 2014, 11:12 AM

Thanks for an excellent, brief and accurate explanation, Frank. There are many who don't want this to be and, so, choose not to understand it.

steve4102 · April 23, 2014, 12:34 PM

Quote:

Originally Posted by USAFNoDak

If you live in a state where pot is now legalized, then you would not be lying if you answered that you were NOT an "illegal" user of marijuana on the 4473 form.

I would suggest you read Frank's post and also take the time to read this.
It is an open letter from the ATF to all FFL Holders.

http://www.nssf.org/share/PDF/ATFOpenLetter092111.pdf

Dreaming100Straight · April 23, 2014, 02:18 PM

Back to the decision of the United States District Court, District of Massachusetts, as interesting as it may be, what precedential effect does it have, if any? This was a summary judgment in which the Commonwealth agreed that plaintiffs were suitable persons to purchase and possess firearms and the Commonwealth proposed that the Massachusetts statutes as applied infringed on these individual plaintiffs' 2A right.

April 21, 2014, 08:55 PM	#1
steve4102 Senior Member Join Date: December 23, 2005 Location: Minnesota Posts: 2,955	Pot Conviction Can't Stop Gun Ownership A US District Court Judge ruled that two Massachusetts men still have their 2nd Amendment rights to own Firearms despite previous Marijuana convictions. He ruled the portion of the Mass, Gun Control Act that prohibits Gun Ownership to those convicted of possession of a Controlled Substance Unconstitutional. http://bostonherald.com/news_opinion..._gun_ownership If a Federal Judge ruled this Unconstitutional on the State Level, would it not be Unconstitutional on the Federal Level also?

April 22, 2014, 12:20 AM	#10
Frank Ettin Staff Join Date: November 23, 2005 Location: California - San Francisco Posts: 9,471	This looks like much ado about nothing. It appears that this Massachusetts case involved a federal trial court's ruling regarding the effect of very old marijuana possession convictions as disqualifying conditions under a particular Massachusetts firearms law. It appears from the minimal information in the article that under Massachusetts law anyone who had ever been convicted of a drug possession offense was disqualified from possessing a gun -- perhaps even if the crime was a misdemeanor. The federal judge did not rule that law unconstitutional. He only found it unconstitutional as applied here. A user of marijuana is still prohibited under federal law from possessing guns or ammunition, even if marijuana use is legal under state law. And a convicted felon is also under federal law prohibited from possessing guns or ammunition. __________________ "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

April 23, 2014, 07:51 AM	#20
USAFNoDak Senior Member Join Date: August 21, 2000 Location: Minnesota, Twin Cities Posts: 1,076	If you live in a state where pot is now legalized, then you would not be lying if you answered that you were NOT an "illegal" user of marijuana on the 4473 form. It seems that would be a slam dunk for a lawyer defending someone in Colorado, for example. This will get interesting. __________________ "If you love wealth better than liberty, the tranquility of servitude better than the animating contest of freedom, go home from us in peace. We ask not your counsels or arms. Crouch down and lick the hands which feed you. May your chains set lightly upon you and may posterity forget that ye were our countrymen." Samuel Adams.

April 23, 2014, 11:12 AM	#23
Armorer-at-Law Senior Member Join Date: October 29, 2002 Location: Cincinnati, OH Posts: 465	Thanks for an excellent, brief and accurate explanation, Frank. There are many who don't want this to be and, so, choose not to understand it. __________________ Send lawyers, guns, and money... Armorer-at-Law.com 07FFL/02SOT

April 21, 2014, 09:29 PM	#2
kilimanjaro Senior Member Join Date: November 23, 2009 Posts: 3,963	When ruled by a Federal Court addressing Federal law, and upheld by the Supreme Court if appealed, the answer would then, and only then, be yes. Until then, only in Massachusetts, and only as far as the court ruled.

April 21, 2014, 09:43 PM	#3
steve4102 Senior Member Join Date: December 23, 2005 Location: Minnesota Posts: 2,955	The State laws is Unconstitutional in Mass, but the Federal Laws deeming these two "Prohibited Persons" still applies, even in Mass.?

April 21, 2014, 09:57 PM	#4
Aguila Blanca Staff Join Date: September 25, 2008 Location: CONUS Posts: 18,468	To further muddify the waters, the way the article explains it the judge didn't toss the MA state law, he basically just said, "Ignore it for weed, because you [the State] are backing down on how tough you want to be about it." What was that definition of "mugwump" again?

April 21, 2014, 10:01 PM	#5
KyJim Senior Member Join Date: July 26, 2005 Location: The Bluegrass Posts: 9,142	You really can't tell much about what is going on from the linked article. However, I would just observe that a conviction for simple possession is probably a misdemeanor. A past conviction does not necessarily mean the person is currently an unlawful user of or addicted to marijuana. Form 443 asks, "Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?" I mean how many people smoked pot in this country when they were young but were never addicted and don't currently use?

April 21, 2014, 11:22 PM	#6
steve4102 Senior Member Join Date: December 23, 2005 Location: Minnesota Posts: 2,955	If you have a Conviction for Illegal Possession of a Controlled Substance, are you considered and "Unlawful User" and therefor a "Prohibited Person"? IF so, for how long?

April 22, 2014, 12:12 AM	#9
Buzzcook Senior Member Join Date: November 29, 2007 Location: Everett, WA Posts: 6,126	For those convicted under state law of marijuana possession in the two state where marijuana is now legal; it is my understanding that those convictions will be removed from their records. So it is possible that with no state record of conviction there is then no grounds for federal refusal of a purchase. I also wonder about those states where marijuana has been decriminalized or is a misdemeanor. If there is no conviction with punishment being administrative, does that count as a conviction to the feds?

April 22, 2014, 09:08 AM	#11
JimDandy Senior Member Join Date: August 8, 2012 Posts: 2,556	I can't say as to the State law, but Federal law is fairly detailed on what the unlawful user/addicted part covers, by referring to some legalese about Scheduled drugs as defined in another section as I recall.

April 22, 2014, 11:46 AM	#12
Sierra280 Junior member Join Date: July 29, 2013 Location: Gardnerville, NV Posts: 569	Looks like the 443 form may be getting some wording changes in the not too distant future. CO and WA have made pot no more illegal than alcohol, and with the vast number of people around here and in CA with 'medical' marijuana cards, this is becoming a very slippery slope. Just like alcohol, as long as a person is not under the influence while shooting or handling a gun, I don't really see the problem. Maybe we can setup a separate station at the range with free Funions and Ruffles to separate out any canabis users.

April 22, 2014, 11:55 AM	#13
JimDandy Senior Member Join Date: August 8, 2012 Posts: 2,556	Being legal in WA/CO doesn't make it legal in NY, CA, or even WA/CO as long as it's illegal federally. The 4473 form could use an update, but there isn't an impetus for it based on WA/CO law changes.

April 22, 2014, 12:23 PM	#16
JimDandy Senior Member Join Date: August 8, 2012 Posts: 2,556	It's part of our dual sovereignty system. Both levels have to legalize (or not have criminalized it) to make a thing legal. Washington has legalized it (more or less- some conduct with it hasn't been legalized) so the state and lower police won't enforce some things no longer on the books. But the Federal agencies still can, and may or may not. The States had a lot of negotiating, and probably still more yet to do, with the Federal Government on what they would and wouldn't relax in other areas. Banking/Tax laws was one area on the news recently- something about not being able to claim rent paid on the square footage used to sell the marijuana itself. I mention this to illustrate the point. We've already had at least one home invasion of a grower end in gunfire. Frank or one of the others can correct me if I'm wrong- but the State may have found that to be self defense. The Federal government could probably still arrest and try him for possessing controlled substances and firearms at the same time.

April 22, 2014, 08:26 PM	#17
Sierra280 Junior member Join Date: July 29, 2013 Location: Gardnerville, NV Posts: 569	^^I believe that incident was in California. It was ruled as self defense, but even CA has minimum mandatory sentencing when it comes to drugs + guns. Very murky territory.

April 22, 2014, 10:38 PM	#18
steve4102 Senior Member Join Date: December 23, 2005 Location: Minnesota Posts: 2,955	^^ Maybe Washington State. Mr Loken was a Medical Grower and was attack in his home. He used his handgun to defend himself and is now charged with Manufacturing Marijuana and using a Gun during a drug trafficking Crime. http://www.seattlepi.com/local/artic...683.php#page-1

April 23, 2014, 05:41 AM	#19
HiBC Senior Member Join Date: November 13, 2006 Posts: 8,286	My take,which may be ...cynical. Given current administration's history,from "choom Gang" to Al Sharpton's recently revealed cocaine issues,drug use,by itself,seems to be a very low priority issue at this time.State legalization seems to soften things further. The "look the other way" thing seems to be the code of the day. But,doggone,the current administration hates your guns.Ends justify the means. Might legaliziong pot be a useful "get out the vote" tool?I think so.Its politically useful. And,the vague,discretionary enforcement thing?Well,the net is in the water,and thousands,millions,maybe,of fishes are swimming into it.No need to spring the trap yet.Just let the naïve keep swimming in.They leave a data trail.A med pot card...I love the vending machine idea,just pop in your driver's liscense. Then later,when the net is bulging full,you announce to the prohibited persons they have given up 2A. Naw,they wouldn't do that...would they?

April 23, 2014, 02:18 PM	#25
Dreaming100Straight Senior Member Join Date: February 3, 2013 Posts: 1,235	Back to the decision of the United States District Court, District of Massachusetts, as interesting as it may be, what precedential effect does it have, if any? This was a summary judgment in which the Commonwealth agreed that plaintiffs were suitable persons to purchase and possess firearms and the Commonwealth proposed that the Massachusetts statutes as applied infringed on these individual plaintiffs' 2A right.