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Old January 6, 2014, 04:43 PM   #51
JimDandy
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Don't rule out Washington Tom. We were stupid enough to legalize it too. And our local LEO's are being reined in from enforcing even what is still illegal. Top that off with Washington being more firearms friendly than Colorado, and I think the tension in the laws is slightly more likely here.

ETA: Colorado has about 1 in 36 Concealed Carriers, Washington has about 1 in 18. While that's not definitive evidence more people in Washington own, it's certainly suggestive.

Last edited by JimDandy; January 6, 2014 at 04:53 PM.
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Old January 6, 2014, 05:17 PM   #52
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I recall my last purchase in California the form asked if you were addicted to or using any legal or illegal substances with an exception for marajuana. The state DOJ does not consider pot use as a disqualifier. This is ironic seeing as how California has the most strict regulations on firearm purchases/ownership in the country.
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Old January 6, 2014, 06:10 PM   #53
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I'm just playing the devil's advocate here:

"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."

This specifically says, "interstate" not "intrastate."

I'll also point out that on the federal form the question regarding use of drugs is meaningless. One can be totally "drug free" at the time the form is filled out and the firearm is purchased. Unless of course the government feels that someone who smoked a joint 20 years previous to filling the ATF form for the firearm purchase (is considered to be by the federal government currently) using illegal substances or is addicted to prohibited substances at the time the form was submitted. This is of course preposterous.

It is stated somewhere within this thread that the state of Colorado doesn't allow medical marijuana users to obtain concealed carry licenses. Although I'm not in Colorado, Oregon has mandated that medical marijuana users cannot be denied an Oregon State concealed handgun license based on that fact and licenses are indeed issued to people within the OMMP. So at least the state of Oregon has determined that an individual can safely use marijuana and possess firearms used for self defense.
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Old January 6, 2014, 06:17 PM   #54
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First, try finding a firearm that is not in Interstate Commerce.

As for the time frame, it's been pointed out already that the Federal Government has defined the time period that counts. I don't remember where or how long, but my memory says it's about five years.

As for Oregon, they can decide just about anything they want at the State level. Their Medical Marijuana recipients are still probably federally barred from firearms, concealed or otherwise. Just like the Federal Government can choose to enforce such a prohibition or not based on the (political) expediency or lack thereof in a prosecution. A strongly anti-marijuana Chief Executive could theoretically change policy, and cause headaches for a lot of people.
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Old January 6, 2014, 06:18 PM   #55
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Quote:
This specifically says, "interstate" not "intrastate."
Yes, but the courts' reading of the Commerce Clause includes things that can affect interstate commerce. That reading includes firearms. In any case, nearly every firearm in Colorado would have crossed state lines to get there.

Quote:
One can be totally "drug free" at the time the form is filled out and the firearm is purchased. Unless of course the government feels that someone who smoked a joint 20 years previous to filling the ATF form for the firearm purchase (is considered to be by the federal government currently) using illegal substances or is addicted to prohibited substances at the time the form was submitted.
I don't imagine someone could be effectively prosecuted if the usage was decades ago, but here's the guideline the ATF uses:

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, or multiple arrests for such offenses within the past five years if the most recent arrest occurred within the past year.
As you can see, it's subjective.
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Old January 6, 2014, 09:30 PM   #56
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Originally Posted by dajowi
...Oregon has mandated that medical marijuana users cannot be denied an Oregon State concealed handgun license based on that fact and licenses are indeed issued to people within the OMMP. So at least the state of Oregon has determined that an individual can safely use marijuana and possess firearms used for self defense...
That's not really an accurate description of what happened in Oregon.

The Oregon Supreme Court, in Willis v. Winters, 253 P.3d 1058 (Or., 2011), ruled that Michael Winters, as Sheriff of Jackson County, was required under Oregon law to issue a concealed handgun license to Cynthia Willis even though she was a medical marijuana user. The Court concluded that Ms. Willis had satisfied the statutory requirements under Oregon's "shall issue" conceal handgun license (CHL) law, notwithstanding that the use of marijuana violated federal law. So the Oregon sheriff was obliged under the applicable Oregon statute to issue a CHL to Ms. Willis.

The case did not substantively address the federal law issue. In fact, the Oregon Supreme Court specifically noted (at pp. 1065 - 1066, emphasis added):
Quote:
...Neither is the statute [the Oregon CHL law] an obstacle to Congress's purposes in the sense that it interferes with the ability of the federal government to enforce the policy that the Gun Control Act expresses. A marijuana user's possession of a CHL may exempt him or her from prosecution or arrest under ORS 166.250(1)(a) and (b), but it does not in any way preclude full enforcement of the federal law by federal law enforcement officials...
And thus the Oregon Supreme Court specifically acknowledged that while Ms. Willis would not be arrested by Oregon LEOs or prosecuted under Oregon law for carrying a concealed handgun, she could still be arrested by federal LEOs, prosecuted under federal law and sent to federal prison for being a prohibited person in possession of a gun in violation of 18 USC 922(g)(3).

Quote:
Originally Posted by JimDandy
Quote:
Originally Posted by Frank Ettin
The second choice exposes you to no legal liability, except for potential liability for being a prohibited person attempting to purchase a gun.
And that sort of thing has been struck down in the past- William ALBERTSON and Roscoe Quincy Proctor, Petitioners, v. SUBVERSIVE ACTIVITIES CONTROL BOARD. 382 US 70 - And Timothy F. LEARY, Petitioner, v. UNITED STATES.

395 U.S. 6
....
Sigh!

Again you are wrong.

The cases you cite are cases in which the person's sole choices are, essentially, to commit a crime by failing to register or file something or admit a crime by registering or filing something.

But if you don't have a gun and can't lawfully possess one, not having a gun is not a crime. So you have the legal choice to go without a gun.

I've tried explaining to you several ways why requiring someone to truthfully complete the 4473 and prosecuting him if he doesn't answer truthfully does not violate one's right against self incrimination. You apparently can not or will not understand what I've been explaining to you and why the 4473 issue is different from the registration or tax filing cases.

The bottom line is that I have not found a case in which a federal court has let someone charged with violating 18 USC 922(a)(6), making a false statement on a 4473, based on a defense that requiring a truthful answer would violate one's privilege against self-incrimination. Can you cite such a case?

And on the contrary, a quick search found more than 50 appeals from convictions for violation of 18 USC 922(a)(6). In not a single one did the defendant even raise an objection to the conviction on the grounds that requiring a truthful answer violated his right not to incriminate himself.
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Old January 6, 2014, 10:22 PM   #57
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Can you cite such a case?
Probably not. I also probably can't find a case prior to Gideon v Wainwright that holds the state must provide a lawyer for anyone who needs one. But Gideon still made his point.

And my point is more than that the question should provide immunity from prosecution for perjury. My point is that the question is, even by itself, asking for self incrimination. Oreste Fulminante could have stayed silent and broken no law, but he confessed to an informant for protection while in prison.

Are you suggesting that if a plain clothed police officer looks over my shoulder when I check yes on this government form, and uses that as probable cause, I wouldn't have incriminated myself?

The fact is the form specifically, directly asks if you have committed a crime.
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Old January 6, 2014, 10:35 PM   #58
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Originally Posted by cal10 :

Quote:
I recall my last purchase in California the form asked if you were addicted to or using any legal or illegal substances with an exception for marajuana
cal10,

When you refer to 'the form' in your above statement are you referring to the 4473 form?
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Old January 6, 2014, 11:00 PM   #59
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Originally Posted by JimDandy
...Are you suggesting that if a plain clothed police officer looks over my shoulder when I check yes on this government form, and uses that as probable cause, I wouldn't have incriminated myself?...
Let's limit this to the 4473 issue so things don't get confused. So we'll posit that the LEO is looking over your shoulder as you fill out a 4473 to buy a gun at a dealer.

You have incriminated yourself because you have admitted committing a crime. But the use of your admission does not violate your Fifth Amendment right not to be compelled to testify against yourself.

You have the right not to answer the question because you had the right not to buy the gun. Your choice to buy the gun was voluntary, and once you have made that choice you may be required to disclose your record on the 4473. Incriminating answers may be used against you, and you may be prosecuted for giving false answers.

In effect, by choosing to buy a gun you have waived your Fifth Amendment right not to be compelled to testify against yourself. If you want to preserve that right, don't buy the gun. You can not go to jail for not buying a gun.

It's similar to how things work if you're on trial on a criminal charge and testifying on your own behalf.
  1. You have a Fifth Amendment right not to testify on your own behalf; and if you choose not to testify, your failure to testify may not be used against you.

  2. However, if you choose to testify, you will be subject to cross examination. In that event, during cross examination, you may not claim the Fifth Amendment privilege to avoid answering any question properly within the scope of cross examination; and if you lie when answering any such question you will still be subject to prosecution for perjury.

And understand that while it's an important personal right the Fifth Amendment privilege against being compelled to testify against yourself has limits. It, like other evidentiary privileges allowing one to resist disclosure, hampers discovering the truth; so they tend to be narrowly applied. For example, see this thread discussing a recent Supreme Court decision narrowing the "right to remain silent."

Quote:
Originally Posted by JimDandy
...The fact is the form specifically, directly asks if you have committed a crime...
Yes it does. So what? You would commit no crime by not buying a gun; and if you don't buy a gun, you don't have to answer the questions.
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Old January 6, 2014, 11:08 PM   #60
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At least the federal Government is not aggressively pushing for inforcement of marihuana laws.
At least the federal Government is not aggressively pushing for inforcement of marihuana laws at this time.

A new administration could change that in a heartbeat.
Quote:
Are you suggesting that if a plain clothed police officer looks over my shoulder when I check yes on this government form, and uses that as probable cause, I wouldn't have incriminated myself?
By this (incorrect) definition of self-incrimination, virtually any evidence garnered from observing the defendant is self-incrimination.

The fifth amendment doesn't protect you from VOLUNTARILY self-incriminating. It prevents you from being COMPELLED to self-incriminate and/or prevents any information obtained in such fashion from being used against you.

You are not compelled to be in a gun shop like a defendant is compelled to be in court, or an arrestee is compelled to be temporarily incarcerated.

You are not compelled to fill out a 4473 like a witness is forced to tell the truth, the whole truth and nothing but the truth, or like a person who is being beaten is forced to confess to stop the beating.

You have the choice to not be in the shop. You have a choice to not fill out a 4473.

If you CHOOSE to go to a gun shop and CHOOSE to fill out the 4473 and CHOOSE to self-incriminate yourself on the form, then your application will be rejected and you may be subject to prosecution. If someone detains or abducts you and forces you to fill out a 4473, then you would not be liable for anything you put down on the form since you were forced to self-incriminate.

Otherwise you haven't been compelled to do anything. At any time in the process, you are totally free to stop and walk away.
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Old January 6, 2014, 11:11 PM   #61
Frank Ettin
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Originally Posted by cal10
I recall my last purchase in California the form asked if you were addicted to or using any legal or illegal substances with an exception for marajuana. The state DOJ does not consider pot use as a disqualifier....
I believe that your recollection is faulty.

In California one fills out two forms: the federal 4473 and the California Dealer Record of Sale (DROS).

This form of the DROS has no such question. And I've bought many guns in California and have answered no such question on the DROS.

And we've discussed the question on the 4473.
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Old January 7, 2014, 12:42 AM   #62
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I found an article explaining the current administration's view on Colorado's recent legalization of marijuana.

Article

It appears as though the federal government plans to overlook Colorado legalizing weed for now as they have more important issues to focus on currently. It doesn't appear as though they will overlook it for long though, the president has expressed his views against widespread legalization of the drug.
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Old January 7, 2014, 09:48 AM   #63
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His views against it, or his views placating the older population with opposition t widespread legalization? Someone who partakes of something is not going to be particularly opposed to it's legalisation.

Last edited by Frank Ettin; January 7, 2014 at 10:05 AM. Reason: Deleted off-topic material
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Old January 7, 2014, 12:30 PM   #64
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From post #48:

"This statement:

Quote:
Quote:
I have not heard a reasonable legal argument supporting the legitimacy/legality, under current federal law, of using marijuana/cannabis while owning and transferring firearms.
-And this statement:

Quote:
Quote:
Given the number of people whose right to an armed self defense as recognized under U.S. federal law by the Second Amendment to our U.S. Constitution, it would seem the most reasonable solution would be to remove marijuana/cannabis from the federal schedule of "controlled substances" and restore federal recognition of the right to an armed self-defense to these millions of U.S. citizens.
-Seem to be at cross-purposes. Did you mean you hadn't heard a reasonable legal argument for prohibiting those who use marijuana/cannabis?"

No. I stated what I intended, the current lack of legality of combining cannabis and firearms ownership/transfers under current federal law and the solution that seems to be the most logical/straightforward. No purpose other than to state our position and a logical course to a less complicated/conflicted position (though not one completely free of issues).
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Old January 7, 2014, 04:14 PM   #65
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"And thus the Oregon Supreme Court specifically acknowledged that while Ms. Willis would not be arrested by Oregon LEOs or prosecuted under Oregon law for carrying a concealed handgun, she could still be arrested by federal LEOs, prosecuted under federal law and sent to federal prison for being a prohibited person in possession of a gun in violation of 18 USC 922(g)(3)."

Granted Ms. Willis could be prosecuted under federal law in violation of 18 USC 922(g) (3). The point is that she hasn't been, and it seems that at this time the federal government isn't going to push the issue.

The last time I renewed my concealed carry license I had a rather spirited conversation with a sheriff's department employee about this very issue. Our county sheriff was issuing licenses to Oregon Medical Marijuana Program enrollees.

So this leaves the question, how can the federal government not view this as a total violation of federal law? And why aren't they acting on it?
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Old January 7, 2014, 05:11 PM   #66
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Quote:
So this leaves the question, how can the federal government not view this as a total violation of federal law?
It does.

Quote:
And why aren't they acting on it?
Because there are more U.S. citizens violating more federal laws than there are U.S. attorneys to prosecute them (not to mention courts, prison cells, etc.).

Law enforcement officials at all levels prioritize the laws they actively enforce, others which they passively enforce, and others which are ignored entirely.
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Old January 7, 2014, 05:19 PM   #67
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The federal goverment does enforce marijuana laws. Here at the ski areas in California many people smoke pot, most of them have CA medical cards, but ski areas are on federal land and many, many people have gotten busted this way!

Also, the bigger problem is many states have severe penalties for possessing a gun while carrying drugs (automatic 10yrs in CA for having a gun with drugs) That, and there is still a very big black market for marijuana and it leads to gun crimes. Case in point, a couple years ago a nor-cal medical pot growers home was broken into late at night, his wife called 911. On The tape of the call she said a robber broke into their house and she needed the police, then suddenly she screams, 'he's got a gun!' Then many gun shots. When she spotted the robbers gun, he husband (the grower) unloaded his 45ACP into the robber. Here's the problem: the man was protecting his home from the robber, the robber was there to steal pot, when the man shot the robber he was effectively protecting his pot. I believe the guy wasn't charged, but vice (in this case pot) leads to crime!
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Old January 7, 2014, 06:46 PM   #68
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"...the robber was there to steal pot, when the man shot the robber he was effectively protecting his pot. I believe the guy wasn't charged, but vice (in this case pot) leads to crime!..."

Which is pretty much the same as a liquor store being robbed, or a convenience store having its cartons of cigarettes taken at the point of a gun.
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Old January 7, 2014, 06:59 PM   #69
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Here's the problem: the man was protecting his home from the robber, the robber was there to steal pot, when the man shot the robber he was effectively protecting his pot.
It is medicine, though. I don't have a problem with someone protecting medical cannabis, anymore than I have a problem with an armed security guard protecting prescription medication, or a facility where cancer medicine is held, or something along those lines. If he owns a co-op, he's likely growing that medicine for multiple patients, too. I see nothing wrong with someone protecting their medicine or other people's medicine, within reason. I think the situation, as you stated, was reasonable.
I know of a medical co-op which was robbed, and the police not only returned about 2 lbs, that they had found in the road, but they filed a complete police report. There was a legally obtained shotgun in the house that the police were informed about, which they had no problem with, either. They were state police, so they were following state law, AFAIK.

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Old January 7, 2014, 07:31 PM   #70
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I guess the point I was trying to make, was that while federal law prohibits it, it doesn't seem as though there have been any cases of a cannabis user losing their 2A rights because of it. Unless someone can think of a specific case of this happening, there are many examples of legal cannabis users owning firearms. Hell, every medical marijuana card holder I know owns guns!
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Old January 7, 2014, 07:54 PM   #71
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I guess the point I was trying to make, was that while federal law prohibits it, it doesn't seem as though there have been any cases of a cannabis user losing their 2A rights because of it.
That just means they're not busting people right now. Those people are still violating the law. The fact that it just isn't being enforced doesn't meant it won't be in the future.
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Old January 7, 2014, 08:44 PM   #72
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So much heat and so little light. It's really very simple: A user of marijuana, even if legal under state law, commits a federal felony by possessing a gun or ammunition; and a user of marijuana, even if legal under state law, commits a federal felony if he answers "no" to question 11e on the 4473.

That's it. That's really all there is to it. That's the whole story. It's not a gray area. Perhaps the only issue is how much use and how recent the use must be to be a "user of marijuana" for the purposes of 18 USC 922(g)(3).

Quote:
Originally Posted by Sierra280
...while federal law prohibits it, it doesn't seem as though there have been any cases of a cannabis user losing their 2A rights because of it...
  1. They certainly will prosecute "unlawful user with a gun" cases. See post 25:
    Quote:
    Originally Posted by Frank Ettin
    ...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...
  2. There is the doctrine of prosecutorial discretion. Prosecutors generally can decide how to use limited resources.

    1. A policy not to prosecute certain crimes is a matter of policy only. It doesn't change the law, and policy can change in an instant.

    2. So if a user of marijuana who wants to have a gun would like to bet up to five years in federal prison and a lifetime loss of gun rights on the mercies (which may or may not be tender) of the local U. S. Attorney, he can be my guest.
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Old January 8, 2014, 07:51 AM   #73
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Think about who you are trusting to "not enforce." Eric Holder?I do not know his attitude toward pot,but ponder Fast and Furious a while.
I do not think it is any secret,they do not like your guns.

The pot vote brought a lot of useful tools to the polls.

The politics will be carefully played.

Why pull in a net while the fish are still eagerly filling it?

Data is being generated and stored.Security cams,facial recognition,your Visa card,etc.

When the time is right,they probably won't need many resources.Go back and watch the Ruby Ridge/Randy Weaver vids on You tube to see what has been done over a hacksaw job and a $200 tax stamp.

"Well,Cheech,you are in a whole lot of trouble..but maybe we can cut a plea deal here.You give us some names,we get all your guns,you will never own a gun again,but,no jail and only a $5000 fine,how about it?

Then there is the SD shoot and testing positive...
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Old January 9, 2014, 11:19 AM   #74
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Quote:
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.
In the current political climate, I see this as another third rail. Neither side would be willing to touch it.

Even though, as has been pointed out many times, it is still illegal to check the 'NO' box on the 4473, very few people are being prosecuted, as mentioned out in the below article.

http://www.politifact.com/new-hampsh...us-senator-ke/

Even though the current administration has no plans, or very few, to crack down on the issue of state allowed marijuana laws and guns, nothing is going to preclude another administration at another time to begin the crackdown.

A side note: Folks, I love the discussion and would like to be a fly on the wall if all of you ever got together in one room.
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Old January 10, 2014, 10:42 AM   #75
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So, if I am a user of Pot living in Colorado, I purchase my pot from a "Legal" grower/vender and the State of Colorado collects a Sales Tax from my Purchase, would I not be considered a legal user?

Basically, how can the State collect a Tax on an Illegal Controlled Substance?
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