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Old January 10, 2013, 02:16 PM   #1
Wbdisco
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Firearm Owner Protection

I was thinking about the possible impending gun control laws. Being that I am not a lawyer, I did see a parallel to the marijuana laws in Colorado and Washington state. Would it be possible for the states to pass laws keeping the right to "assault weapons"? Even if the federal government outlaws them, the state could allow them. Just like marijuana is still illegal federally, but some states allow it. It is that the Feds choose not to "pursue" marijuana busts in legal states. I think this adds an encouraging precedent for firearm enthusiasts.
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Old January 10, 2013, 02:25 PM   #2
JimDandy
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For the most part the current administration likes Pot, and participates in their own version of don't-ask-don't-tell. There are a few hiccups and gray areas that have already been reported from the medical marijuana dispensaries, let alone what will happen when the recreational use dispensaries are up and running (Whatever method that takes)... All of that leads to the Feds having more than enough tools to really dink with people doing what they don't want them to do when the state doesn't want to cooperate.

In the case of pot, they at least tacitly approve, and won't butt heads. Guns aren't the same, so they'll pull out all the stops they can.
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Old January 10, 2013, 02:34 PM   #3
Wbdisco
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I had thought the same, but in court legally, someone could challenge this I am sure. I figure that if they take certain a guns away there might be a group/person that would find a way to challenge the dopers, I mean if we can't have what we want they can't have what they want. What is good for the goose is good for the gander right?
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Old January 10, 2013, 02:46 PM   #4
JimDandy
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Gun ownership in and of itself isn't a protected class that can be discrimintated against as far as I know, so we can't sue they're not dinking with the arguably illegal drug dispensaries while enforcing the law against the theoretically illegal gun salesmen.
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Old January 10, 2013, 02:52 PM   #5
zukiphile
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Wbdisco, I would not seek refuge from the force of federal law in a contrary state law. The specific example you use has been addressed in Gonzales v. Raich. The reasoning in that case is that even where the marijuana is not in commerce and where it is not part of an interstate transaction, it still is part of a matter that is in interstate commerce and so is subject to federal control.

I very much prefer the dissent of Clarence Thomas in that case. He noted that "interstate" means between states and "commerce" indicates buying and selling, and that where there is no interstate transaction and no commerce, federal authority cannot stand on the interstate commerce clause.

I admire the clarity of his opinion, but recognize that it was a dissent. He lost.
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Old January 10, 2013, 07:11 PM   #6
hermannr
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All I know: I live in WA. It has been suggested that my wife might benifit from medical MJ. Her doctor says, yes, it might help her problem, but with the present legal and political climate he would recommend trying it.

(my doctor and I are both gun owners and we both carry all the time)
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Old January 10, 2013, 08:01 PM   #7
Frank Ettin
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The general marijuana issue and conundrum was discussed at some length here. Although that thread was regarding Colorado, the same federal law issue would be presented in Washington State.
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Old January 10, 2013, 08:35 PM   #8
Wbdisco
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my basic reasoning for posting this was not to debate the MJ situation, lord knows probably half the people on this board experimented in their younger years.

I was more asking the question of why a state couldn't pass a law allowing "assault weapons" if there were ever a ban. I was thinking that under the current MJ laws, the feds aren't really bothering the states that have it legal under medical or recreation uses. It is still technically a felony but they are not pursuing the people that are breaking federal laws in states that allow it.
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Old January 10, 2013, 09:05 PM   #9
Frank Ettin
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Quote:
Originally Posted by Wbdisco
...I was more asking the question of why a state couldn't pass a law allowing "assault weapons" if there were ever a ban. I was thinking that under the current MJ laws, the feds aren't really bothering the states that have it legal under medical or recreation uses....
  1. That's all about the doctrine of prosecutorial discretion. Prosecutors generally can decide how to use limited resources.

    In some cases a policy decision to back off of certain types of crimes might be driven by a conclusion that enough people, particularly among the current administration's constituency, find the conduct relatively benign. That might not be the case with other matters.

    To put some flesh on those bones, I can see the appeal to the current administration of soft peddling recreation marijuana prosecutions in State which have decriminalized it. And I can accept that the current administration could reasonably conclude that it has adequate political cover to support that policy decision. But if the subject were a matter about which the current administration's constituency was likely to feel differently, e. g., guns, I don't think we could count on the same level of prosecutorial forbearance.

  2. And looking at the marijuana issue, the Obama administration might have a policy not to vigorously enforce federal controlled substance law with respect to recreational marijuana use. That doesn't mean that the Obama administration isn't going to vigorously enforce federal gun laws with regard to persons who are unlawful users of a controlled substance and who are unlawfully, under federal law, in possession of a gun.

  3. A a month or so ago I did a quick search of federal appellate court decisions in a legal data base I subscribe to and quickly found more than 50 cases apparently involving convictions for being an unlawful user of a controlled substance in possession of a gun. Those were just appeals, and there were probably more; but I didn't see any point to spending any more time on it.

  4. So imagine that the Obama administration would back off enforcing federal gun laws in a State that with a more lenient guns laws that conflicted with federal law?
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