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Old January 16, 2011, 02:31 PM   #1
gc70
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Schumer's Solution: Firearms Disqualifications for Drug Use

Arizona Shooting Prompts Schumer to Push for Military to Report Applicants' Drug Use to Prevent Gun Purchases

Quote:
If someone admits to a federal official that he's used illegal drugs, that information should be sent to the FBI so that person can be disqualified from purchasing a gun, Sen. Chuck Schumer said Sunday.

Noting that the alleged shooter in the Tucson massacre had admitted to military recruiters that he had used drugs on several occasions, Schumer said he is proposing to the Justice Department and Bureau of Alcohol, Tobacco, Firearms and Explosives that the military be required to notify federal officials about such admissions. The New York Democrat said such a process does not require new legislation.
Unlike McCarthy's go-nowhere magazine ban, Schumer's proposal looks like it could be implemented through action by the Administration and without Congressional approval.

The prohibition in 18 U.S.C. § 922(d)(3) ("is an unlawful user of or addicted to any controlled substance") appears potentially ambiguous enough to encompass prior drug use, depending on how "is" is interpreted. Does anyone know of prior court cases dealing with this question?
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Old January 16, 2011, 02:41 PM   #2
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In what commonplace context would most Americans find themselves talking to a federal official about past illegal drug use?
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Old January 16, 2011, 02:58 PM   #3
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Any applicant for a federal job, military or civilian, including direct or contract employment, is asked about drug use. The military (1.4 million) and direct civilian (2.8 million) workforce totals over 4 million and there are many more applicants than jobs. The government contractor workforce is huge, but I can't find statistics on aggregate size. As an example of size, DHS recently admitted that its contract workforce is larger than is direct government employee workforce.

It is not just the number of people who would answer questions about drug use for government employment, but the concept that drug use at one time would be a disqualification that is disturbing. If that concept was accepted as valid, it could be extended to state and local government workers and applicants, potentially to veterans, and to anyone who was ever convicted for drug use - and not just a felony conviction.
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Old January 16, 2011, 03:08 PM   #4
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I suppose it all comes down to what the meaning of "is" is, as a former POTUS once said. But I do know that "IS' and "EVER HAS" do not have identical meanings.
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Old January 16, 2011, 03:11 PM   #5
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Seems like it might eventually require a bit of work regarding the federal definition of medicine, versus the California definition.
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Old January 16, 2011, 03:21 PM   #6
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It would be an interesting conundrum if the ACLU started yelling "MEDICAL MARIJUANA" , ADA act.

Although Fed does trump State, would be "outside the box" case though.
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Old January 16, 2011, 03:36 PM   #7
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I would still be interested in any case law about 18 U.S.C. § 922(d)(3). IS does not mean EVER HAS to me, but IS must have some legal duration.
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Old January 16, 2011, 04:06 PM   #8
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Such a law would disqualify a MASSIVE number of American citizens who are no threat to anyone. Drug use and drug abuse are two VERY different things. With very little effort I could see this very easily start to be applied to legal and prescribed drugs.

"Schizophrenic people can't be trusted with guns, even those with minor cases who take their medication."

"Have bipolar disorder? Can't trust you with guns because you might stop taking your medicine."

"Ever drank alcohol? No guns for you."

Make no mistake, such legislation is more dangerous than a simple magazine ban.
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Old January 16, 2011, 04:17 PM   #9
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Quote:
Unlike McCarthy's go-nowhere magazine ban, Schumer's proposal looks like it could be implemented through action by the Administration and without Congressional approval.


i don't think so.
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Old January 16, 2011, 04:18 PM   #10
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i think that Tom Coburns comment at the end of that article are just as scary as Schumer's.
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Old January 16, 2011, 04:25 PM   #11
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Quote:
Originally Posted by heyjoe
i think that Tom Coburns comment at the end of that article are just as scary as Schumer's.
Interpretation, and even quotes, taken out of context can be slanted. Here is the transcript of Meet the Press on 1/16/11. To me, it looks like Schumer wants a change in the way the drug disqualification is applied for gun ownership, while Coburn wants to get more help for the mentally disturbed.
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Old January 16, 2011, 05:14 PM   #12
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reading the transcript it still seems to me that Coburn is referring to limiting the right of people who have been treated for a mental illness not just those who have been adjudicated as being a danger to themselves or others, from being able to exercize their second amendment right. Anyone who has had counseling, been treated for mild depression, suffered from some post traumatic stress in the military etc. would potentially be in danger following this logic. Extreme cases such as Loughner are cited to get laws changed but the change in actuality may and probably will affect many who are no danger to anyone.
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Old January 16, 2011, 05:35 PM   #13
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21 USC 802 defines the terms used in 922g(3) except that it doesn't define unlawful user of only addict.

The term "addict" means any individual who habitually uses any narcotic drug so as to endanger the public morals, health, safety, or welfare, or who is so far addicted to the use of narcotic drugs as to have lost the power of self-control with reference to his addiction.

"Is an unlawful user of" is really quite vague in this instance. It implies present tense but how far back does it go?

You could argue that if you're not an addict that the law merely prohibits possession while said person is actually using a controlled substance.

How many people actually get prosecuted under 922g(3)?
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Old January 16, 2011, 08:17 PM   #14
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Quote:
Originally Posted by vranasaurus
"Is an unlawful user of" is really quite vague in this instance. It implies present tense but how far back does it go?
Present tense is present tense. There is no "implied" about it. "Is" means "right now, at this moment in time."

ANY amount of time back before right-now-this-very-minute would be past tense, and the past tense of "is" is "was."

That said, I don't think the question means, "Are you smoking a joint while answering this question?" It means, "Are you NOW a regular user?" If you smoked a joint a day or two or three ago and you know you'll probably smoke another joint tonight or tomorrow night ... yeah, you ARE an unlawful user. On the other hand, if you smoked your last joint a month ago and decided that was going to be your last one ... you ARE not an unlawful user. You WERE an unlawful user, but today you are not any kind of user.

Words have meanings. That's why we use them. Even the courts defer to standard dictionaries for the definitions of words that are not explicitly defined in the law at question.
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Old January 16, 2011, 09:20 PM   #15
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Aguila Blanca,

You shift the question from the meaning of IS to the meaning of USER and your answer is then based on intent.

I wonder whether such a standard would work. A restriction based on intent would be essentially meaningless. The courts generally presume that any clause in a law is not intended to be without effect, so the courts will try to ascribe a meaning and effect to "is an unlawful user."
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Old January 16, 2011, 09:32 PM   #16
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I had a buddy of mine who got disqualified from the military for like a year for admitting to smoking pot. It had been within the time frame they were asking at the time. That was 1997. He was 18 then.

Now he is a clean cut every day average Joe who is 32 years old. He doesn't use any illegal drugs. And hasn't since his adolescent days.

Is Chuck implying that his 13 year old MEPS record could be used today to bar him from owing firearms?
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Old January 16, 2011, 10:03 PM   #17
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I'm sure the senator is thinking that it'll be easier to expand the list of prohibited persons than it would be a gun ban of any sort in the wake of Heller and MacDonald.

Afterall who can be against nuts and druggies being banned from having guns.......:barf:
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Old January 16, 2011, 10:23 PM   #18
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Yeah, but what about retroactive enforcement on previous records like my friends? Would self admittance in 1998 at a MEPS station be used against that individual in Schumer's idea flies?
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Old January 17, 2011, 12:48 AM   #19
vranasaurus
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Quote:
Originally posted by Aquila Blanca


Present tense is present tense. There is no "implied" about it. "Is" means "right now, at this moment in time."

ANY amount of time back before right-now-this-very-minute would be past tense, and the past tense of "is" is "was."

That said, I don't think the question means, "Are you smoking a joint while answering this question?" It means, "Are you NOW a regular user?" If you smoked a joint a day or two or three ago and you know you'll probably smoke another joint tonight or tomorrow night ... yeah, you ARE an unlawful user. On the other hand, if you smoked your last joint a month ago and decided that was going to be your last one ... you ARE not an unlawful user. You WERE an unlawful user, but today you are not any kind of user.

Words have meanings. That's why we use them. Even the courts defer to standard dictionaries for the definitions of words that are not explicitly defined in the law at question.
That's the problem is that you have to interpret what time frame we are talking about.That's your interpretation but you and I can reasonably have different interpretations.

If present tense means present tense then the use would have to be at the time of possession of the firearm to violate the law.

How many days do you have to go without using before you're not an unlawful user anymore?

A simple definition defining the term "Is an unlawful user" would be helpful. Something like:

"Is an unlawful user" is defined as a person who has unlawfully used a controlled substance within the last X days.
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Old January 17, 2011, 09:28 AM   #20
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As a policy matter, it is a bad idea. It creates incentive for federal emplioyees to lie to their employer and gives other countries an additional lever for blackmail/espionage that they currently don't have.

As a legal matter, I don't think it can hold up to intermediate or strict scrutiny when applied to people who have used illegal drugs in the past but are no longer using illegal drugs. If it does meet either of those standards of scrutiny, then that sets a scary precedent for stripping citizens of their rights under the Constitution.

Realistically, don't see it going anywhere unless Chuck just feels like purging whatever Blue Dog Democrats remain in the party.
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Old January 17, 2011, 10:52 AM   #21
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Politically, Schumer's idea has by far the best prospect of happening of any of the gun control proposals that have recently been floated. Since it involves an administrative determination and action, Congress is not involved. And the selling point that the Arizona shooter could have been stopped if the military had reported his drug use and disqualification to NICS will have great appeal in many circles.

Legally, I see substantial problems for Schumer's proposal. Applying it to past drug use would probably not stand up in court. Applying it to recent or current drug use might well survive a court challenge. That would lead to another issue - once a name goes into NICS, it is extremely hard to remove.
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Old January 17, 2011, 12:12 PM   #22
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Quote:
I had a buddy of mine who got disqualified from the military for like a year for admitting to smoking pot. It had been within the time frame they were asking at the time. That was 1997. He was 18 then.

Now he is a clean cut every day average Joe who is 32 years old. He doesn't use any illegal drugs. And hasn't since his adolescent days.

Is Chuck implying that his 13 year old MEPS record could be used today to bar him from owing firearms?
Schumer isn't implying any such thing. He's flat out said it. Any admission of illegal drug use EVER to a federal official and no guns.

Quote:
If someone admits to a federal official that he's used illegal drugs, that information should be sent to the FBI so that person can be disqualified from purchasing a gun, Sen. Chuck Schumer said Sunday.
Remember, no circumvention of due process is too extreme as long as it's applied to gun owners.
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Old January 17, 2011, 02:16 PM   #23
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Conforting that you can qualify for a top secret clearance if you've smoked pot, but this guy doesnt want you to own a gun. :barf:
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Old January 17, 2011, 03:00 PM   #24
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I think some presidents of both parties would have to give up their guns, Chuck.

I've read that George Washington might have ... . Drop that musket, George.

Seriously, there may be a move to tighten up reporting of offenses as compared to current practice. Also, the dropping of charges for rehab - might that be threatened? Is that a good idea?

The Tucson shooter had more problems than pot - so discussing that is a diversion from serious discussions of mental health.
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Old January 17, 2011, 03:52 PM   #25
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I'm not claiming to be from the left or right side of the aisle but I am from Long Island NY and we know a thing or two about Schumer. Just like the most dangerous place to be in Africa being between a Hippo and water as it is on the way back so is the most dangerous place to be in NY being between Schumer and a camera. Dems and Reps agree on that here. In that light just understand that his number one goal is always camera time. While his proposal is one of the easies to put in place his ADD while diving infront of the camera for the latest headline will cause him to move on if dissuaded early enough.
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