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Old April 2, 2010, 03:10 AM   #26
HiBC
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Long ago,faced with the options ofA) Failing a drug test and losing my job or B) Not using pot and paying my mortgage and feeding my family,I made a choice.I also had baby shoes to buy with the $30.( that used to be the price of an oz of columbian)
Today,it is the same circumstance with the card.Either choice is fine,but guns and pot leaves you vulnerable to felony prosecution.The card documents you as a user.The new Fed Health care makes your med records fed property.
My concern about this issue is about the future of the second ammendment.Some folks with agendas have been working a long time.They know what will happen with the Charleton Heston generation.Better idea to work on the younger folks.Many young folks hold pot real high on the priority list.They hold it so high they might risk their second ammendment rights,and,indeed,they might lose them.Then this generation will not raise children and grandchildren who shoot.That is victory for the anti gun.We have a responsibility to pass on the 2nd ammendment legacy to our children.It is their liberty.
I hope you all won't give it away too cheap.We all have to make choices.
I suspect(I am not a lawyer) if a person went to the Dr and officially made ending the prescription a part of the med record,then just cleaned up to be able to pass a test,maybe shave your head and grow new hair,you will be able to prove non-user status with a drug test.
FWIW,I was in my 20's during the 70's
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Old April 2, 2010, 05:39 AM   #27
publius42
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I wouldn't buy that for an instant. One might get a driver's license for a variety of reasons including identification or just in case it might be necessary to drive for some reason, such as to drive a rental car on vacation. But one is going to get a medical marijuana card only if he has some illness which he believes may be helped with the use of marijuana and for which a physician has prescribed marijuana.
I have heard pretty much anyone can get one nowadays, and I got a FL CWP primarily to irritate the anti-gunners by adding one more person to the list of CWP holders. I also upgrade my fishing licenses beyond what I will actually use, both as a "just in case" measure and to support state fishery programs.

If I could get a medpot card, I would do it just to irritate people who hate pot.
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Old April 2, 2010, 08:56 AM   #28
Al Norris
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Inference: n. the reasoning involved in drawing a conclusion or making a logical judgment on the basis of circumstantial evidence and prior conclusions rather than on the basis of direct fact or observation.

Let's see, we have 18 U.S.C. § 922(g)(3), which declares that
"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."
Then we have the controlling CFR (Code of Federal Regulations, which specify how the statute is enforced); 27 C.F.R. § 478.11 defines an unlawful user:
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.
There are also 2 relevant cases which say, “that to sustain a conviction under § 922(g)(3), the government must prove ... that the defendant took drugs with regularity, over an extended period of time, and contemporaneously with his purchase or possession of a firearm.” United States v. Purdy, 264 F.3d 809, 812–13 (9th Cir. 2001), and in United States v. Herrera, 313 F.3d 882 (5th Cir. 2002) (en banc), the government conceded "that, for a defendant to be an ‘unlawful user’ for § 922(g)(3) purposes, his ‘drug use would have to be with regularity and over an extended period of time.’"

But, we aren't talking about a conviction here. We aren't even talking about known possession, which is clearly covered in the CFR, but was not the reason for the NICS denial. We are talking about placing a person into the category of a prohibited person, thereby depriving that person of his rightful use of necessary tools for self defense, by mere inference, without any seeming evidence of actual use (let alone addiction), other than possession of a medical marijuana use card (for lack of a better term).

One cannot infer that because you have a drivers license, that you actually drive. There must be some other evidence, in order to make that connection.

Likewise here, one cannot infer that because you posses a medical marijuana use card, that you actually use marijuana, as the FBI has done by inserting this information into the NICS system. (<--this by inference of the AP article )

This isn't about the power of Congress to regulate an item that may have some economic impact over interstate commerce (Gonzales v. Raich). It is about Congress saying that once an item enters interstate commerce, that item remains forever in commerce and therefore the Congress may regulate the item at all times, until the item is destroyed.

It is also about using the power of Interstate Commerce, without a trial, without probable cause, without a reasonable articulable suspicion, but by mere inference, to deprive a person of a fundamental right.

Stop and think for a moment where this type of power can ultimately lead. Do you really want the Feds, the State or local government(s) to be able to deny your fundamental rights, based merely upon inference of some possibly unlawful action or activity?
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Old April 2, 2010, 09:27 AM   #29
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So if I buy fertilizer for my lawn and diesel for my truck, I should be on the terrorist watchlist due to the inference I am making bombs as I have the receipts for both in my wallet?
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Old April 2, 2010, 11:10 AM   #30
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Antipitas, all you say it true. But --

Yes, if you are being charged with violating 922(g)(3) and being an user of marijuana in possession of a gun, or with lying on the 4473 by denying being an unlawful user of a controlled substance, the government will need to prove beyond a reasonable doubt that you are a user.

However, as you pointed out, we're not talking about conviction of a crime. We're talking about denial of the transfer of a firearm. That, in and of itself, doesn't result in criminal liability, so a court could find that a different standard of proof applies for the administrative act of declining to authorize a transfer of a firearm (compared with the judicial act of convicting someone of a felony and sending him to prison).

The thing is that we don't know yet what that standard of proof is. It looks like we know what the government thinks it is, and the government seems to be taking the position that possession of a medical marijuana card raises a [rebuttable] presumption that one is a user. We don't yet know if a court will agree.

But something similar happens all the time. We regularly read of folks getting transfers denied for a variety of administrative reasons, e. g., the transferee's name is similar to that of a person with a disqualifying record, or there are errors in the transferee's records. And when such things happen, it becomes the denied transferee's burden to pursue the NICS appeal process and get things sorted out.

I don't know if the NICS appeal process has been tested in court and found to satisfy due process. But it appears to still be in routine use.
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Old April 2, 2010, 11:15 AM   #31
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just class envy (warfare) have another beer, you'll feel better.
Need a ride to the store for your smokes?
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Old April 2, 2010, 11:28 AM   #32
vranasaurus
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Possession of a medical marijuana card is evidence of marijuana use.

The card alone is not enough to get or sustain a conviction but it does give me probable cause to believe the possessor is a marijuana user. I would say that if you are in possession of a medical marijuana card it is more likely than not that you are a marijuana user. It is more than a mere inference.

Why else would you have a medical marijuana card?
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Old April 2, 2010, 12:44 PM   #33
publius42
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vranasaurus, see post 28 for one reason.
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Old April 2, 2010, 02:01 PM   #34
Frank Ettin
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Quote:
Originally Posted by vranasaurus
...Possession of a medical marijuana card is evidence of marijuana use.

The card alone is not enough to get or sustain a conviction but it does give me probable cause to believe the possessor is a marijuana user. I would say that if you are in possession of a medical marijuana card it is more likely than not that you are a marijuana user. It is more than a mere inference.

Why else would you have a medical marijuana card?...
Quote:
Originally Posted by publius42
vranasaurus, see post 28 for one reason.
Quote:
Originally Posted by publius42, post 28
...If I could get a medpot card, I would do it just to irritate people who hate pot.
If you want to go to a doctor to confirm a medical diagnosis for which marijuana may be prescribed under applicable state law and create a medical record that you have that medical condition just to tweak someone's nose, that's up to you. But I suspect that's a very uncommon hobby.

And even if you are creating a bogus record just for sport, you will nonetheless cause people who find out to believe that you have a particular disease and that you use marijuana. If that's your idea of a good time, knock yourself out.
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Old April 3, 2010, 06:37 AM   #35
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Basically it all has to do with continuing to make a whole group of

2nd class citizens with fewer rights. The term we now use is convicted felon but since the governments (both state and federal) have pretty much maxxed out their percentages on that... (30+% black and hispanic) they are probably looking at some other way to increase this group....

Of course the hypocrisy is that the 'other' group, primarily white and well off can still get away with their government approved and taxed alcohol and Doctor and FDA approved prescription drugs.
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Old April 6, 2010, 08:56 PM   #36
44 AMP
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The CFR quoted....

Quote:
and any person who is a current user of a controlled substance in a manner other than as prescribed by a licensed physician.
(thank you Antipitas)

Now, is not a medical Marijuana Card "in a manner prescribed by a licensed physician"?

And, if so, then users with a Med MJ card are therefore, NOT "illegal" users. So, since they are not illegal users, they are not prohibited by law from buying a gun.

This seems clear, but I am probably missing something. Please, enlighten me, if you can.
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Old April 6, 2010, 09:12 PM   #37
Frank Ettin
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Quote:
Originally Posted by 44 AMP
...Now, is not a medical Marijuana Card "in a manner prescribed by a licensed physician"?

And, if so, then users with a Med MJ card are therefore, NOT "illegal" users. So, since they are not illegal users, they are not prohibited by law from buying a gun.

This seems clear, but I am probably missing something. Please, enlighten me, if you can.
Since marijuana is a Schedule I controlled substance under the Controlled Substances Act, under federal law it may not be legally prescribed by a physician. Therefore, any user of marijuana, even under a prescription issued by a physician under a state medical marijuana law, is an illegal user under federal law.
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Old April 6, 2010, 09:33 PM   #38
KyJim
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Quote:
One cannot infer that because you have a drivers license, that you actually drive. There must be some other evidence, in order to make that connection.

Likewise here, one cannot infer that because you posses a medical marijuana use card, that you actually use marijuana, as the FBI has done by inserting this information into the NICS system. (<--this by inference of the AP article )
I disagree. The existence of a valid drivers license implies the holder drives. A particular licensee may not, but it is still a permissible inference.

We can also infer that someone holding a Sam's Warehouse membership card shops at Sam's. Perhaps they don't, but it is again a permissible inference. Similarly, why go to the trouble of getting a medical marijuana use card if one doesn't use marijuana? The issue, IMHO, is not whether we can draw an inference of use, but what standard of proof must there be?
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Old April 6, 2010, 10:12 PM   #39
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In civil legal proceedings the inference switches the burden of proof to the other party. Following the example, if it's proven you have a MJ card, it is presumed you consume and you have to prove you do not by whatever means.

In a criminal proceeding said inference is not permited by the Constitution. You don't have to prove your inocense. The burden of proof to show you are guilty of commiting a crime beyond a reasonable doubt lies on the prosecutor. An inference doesn't fulfill the quantum of proof to establish guilt beyond a reasonable doubt nor can it switch the burden of proof for a man is inocent until prooven guilty.
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