"Legal" Marijuana and Guns

[Chaz88]

If enough states follow Colorado then the federal law might eventually be changed.
As a practical matter I am sure a lot of gun owners violated the law before any kind of state legalization happened in any form.
But the bottom line is federal law trumps state and nobody should make plans to use state law to challenge unless they are just itching to be the first failed test case.

[shortwave]

It's been well over 30 years since I last toked on the evil weed, but if I still lived in Colorado and wanted to legally purchase and smoke some, I'd still answer "No" to 11e, since I'm not an "unlawful" user.

...and you would be committing a felony.

As has been pointed out, the 4473 form is a federal document dealing with federal regs./laws, not a state document dealing with state regs./ law. And must be filled out per federal guidelines, not state guidelines.

Same as your federal income tax documents has nothing to do with your state tax documents.

What is bothersome with the whole situation when something is legal as far as the state goes but illegal as far as federal law is (using the state legalization of pot in Colorado scenario) when someone gets busted by state LE for doing something illegal and happens to be in fed violation of having pot/gun on them when getting busted, then the state prosecutor can use these possible fed. drug/firearm charges as leverage in their case in a plea bargain situation if they choose to do so.
Another scenario would be someone such as Bloomberg getting busted in the same situation. His money, political clout and high powered attorneys may surely keep the pot/gun charges from being turned over to the feds whereas the average 'Joe' may not be as fortunate.

Whatever the case may be, I would not want to be sitting in the above possible scenario acting as a guinea pig in a test case. Especially knowing the anti gun sentiments of this administration were my case bounced over into the fed. courts.

[Nickel Plated]

Theoretically speaking, could the pot and illegal drugs prohibition to firearms ownership be challenged in court as essentially taking away 2A rights without due process.

I mean, no guns for felons? Ok, I don't support necessarily, but felons had their day in court.
No guns for those adjudicated mentally ill, again, not a fan of. But again, they had their day in court.

But you smoke a joint. No trial, no jury. No 2A rights for you.

[Frank Ettin]

Originally Posted by Nickel Plated

Theoretically speaking, could the pot and illegal drugs prohibition to firearms ownership be challenged in court as essentially taking away 2A rights without due process....

Beats me. Anyone want to volunteer to be a test case? Anyone want to volunteer to bankroll the case?

[JimDandy]

Well I would guess:

The ones who can't say No on the form, and would trigger a denial had their day in court as well.

The ones who can say No on the form and not trigger a denial would, I believe, more accurately sue over self incrimination grounds. If a prohibited possessor can't be required to register a firearm because that would require self-incrimination, I would assume a pot smoker can't be required to self-incriminate on pot smoking.

[Frank Ettin]

You misunderstand the self-incrimination cases. You may not be compelled to incriminating yourself in order to perform a required act, like paying taxes or registering a gun. You may be required to waive your right against self incrimination in order to perform a voluntary act, like testifying at your trial or buying a gun.

No law requires that you buy a gun. If you choose to buy a gun, you may be required to truthfully answer the question on the form; and you may be prosecuted for answering untruthfully even if a truthful answer would incriminate you.

[iraiam]

Yep, by my read I would be in violation of federal law if I was to become a pot smoker and buy guns/ammo.

other than this, there are just way too many other good reasons to avoid pot, and the people who consume it.

As a Colorado resident, I can say these stoners are quickly becoming a nuisance of epic proportions.

[Bartholomew Roberts]

Originally Posted by shortwave

...and you would be committing a felony.

No, he would not be commiting a felony. There is an official federal regulation defining "unlawful or addicted user" as well as quite a bit of case law on the subject. Suffice it to say that somebody who has not used an illegal drug in 30 years is well clear of that hurdle.

A good thing too since at least two and possibly three of our last three Presidents would have been disqualified from possessing a firearm under the standard you propose.

[JimDandy]

Originally Posted by Bartholomew Roberts

No, he would not be commiting a felony. There is an official federal regulation defining "unlawful or addicted user" as well as quite a bit of case law on the subject. Suffice it to say that somebody who has not used an illegal drug in 30 years is well clear of that hurdle.

You missed part of his statement-

Originally Posted by WyMark

...but if I still lived in Colorado and wanted to legally purchase and smoke some...

Still living in Colorado and wanting to legally purchase and smoke some definitely implies a more recent involvement than his actual more than 30 years ago.

Given some of the schizophrenic politics involved, I wouldn't be surprised to see Project Exile type programs show up in pot friendly cities like Boulder and Denver.

[shortwave]

Originally posted by Bartholomew Roberts

:

No, he would not be commiting a felony. There is an official federal regulation defining "unlawful or addicted user" as well as quite a bit of case law on the subject. Suffice it to say that somebody who has not used an illegal drug in 30 years is well clear of that hurdle.

If he went out and purchased some smoke as he stated he could do if he still lived in Colorado, smoked it and then checked NO on 11e he would be lying on the form and WOULD be committing a felony punishable by up to five years in prison plus fines. Whether pot was legal in Colorado or not makes no difference.

Originally posted by WyMark:

It's been well over 30 years since I last toked on the evil weed, but if I still lived in Colorado and wanted to legally purchase and smoke some, I'd still answer "No" to 11e, since I'm not an "unlawful" user

[Salmoneye]

If enough states follow Colorado then the federal law might eventually be changed.

It's my understanding that this is not likely due to the international treaties that the US has signed over the years...

Case in point is recent 'legalization' in Uruguay who is now facing UN sanctions due to treaty violations...

http://www.usnews.com/news/articles/...un-agency-says

[Bartholomew Roberts]

My bad - poor reading on my part. Even if his use was legal under state law, he could still be a prohibited person due to federal law. I missed the part where he stated a current intent.

[JimDandy]

Originally Posted by Frank Ettin

You misunderstand the self-incrimination cases. You may not be compelled to incriminating yourself in order to perform a required act, like paying taxes or registering a gun. You may be required to waive your right against self incrimination in order to perform a voluntary act, like testifying at your trial or buying a gun.

No law requires that you buy a gun. If you choose to buy a gun, you may be required to truthfully answer the question on the form; and you may be prosecuted for answering untruthfully even if a truthful answer would incriminate you.

I guess I do.

No law requires you to possess a gun. SOME laws require you to register a gun you possess.

No law requires you to purchase a gun, SOME laws require you to fill out a form if you do.

If you are a prohibited possessor, and you don't register as required, you apparently can't be charged or convicted or some such, of failing to register because of self incrimination issues- tho the illegal possession is obviously still fair game.

If you would be a prohibited possessor, you CAN be charged with perjury despite exceptionally similar self-incrimination issues?

[Frank Ettin]

Originally Posted by JimDandy

...If you would be a prohibited possessor, you CAN be charged with perjury despite exceptionally similar self-incrimination issues?

They are not similar self-incrimination issues.

1. If one is legally required to register a gun, and if registering a gun would require that you incriminate yourself by admitting you're prohibited person in possession of a gun, you cannot be prosecuted for not registering the gun.
   
   
   1. Since registering the gun you already have would, under the circumstances assumed, be a compulsory act, prosecuting you for not registering the gun would violate your Fifth Amendment right against being:

      ...compelled in any criminal case to be a witness against...

      yourself.
      
      
   2. You could still be prosecuted for being a prohibited person in possession of a gun, but the prosecution would have to be based on evidence other than your registration of the gun or evidence derived from your registration of the gun.
   
   
2. On the other hand, no one is required to buy a gun. You can not be prosecuted for not having a gun.
   
   
   1. If you choose to buy a gun and buy one at a dealer (or if under state law you have to buy a gun at a dealer), you have to fill out a form; and you commit a federal crime by lying on that form (violating 18 USC 922(a)(6)).
      
      
   2. But you can avoid having to fill out that form by simply not buying a gun. And if you don't buy a gun, you will not be prosecuted for not buying a gun.
      
      
   3. Thus buying a gun is not compulsory, and so you may be prosecuted for failing to truthfully admit on the form a disqualifying condition.

[carguychris]

Originally Posted by Frank Ettin

If you choose to buy a gun and buy one at a dealer (or if under state law you have to buy a gun at a dealer), you have to fill out a form; and you commit a federal crime by lying on that form (violating 18 USC 922(a)(6)).

Now is a good time to mention that CO state law requires that most in-state firearms transfers must go through a licensed gun dealer, thereby generating a Form 4473.

The law exempts transfers between certain family members, various types of temporary transfers, and transfers involving antiques, C&R firearms, and bequests; however, other than these exceptions, a CO resident cannot lawfully purchase a firearm without filling out the form.

Originally Posted by CO Revised Statutes

18-12-112. Private firearms transfers - background check required - penalty - definitions

(1) (a) On and after July 1, 2013, except as described in subsection (6) of this section, before any person who is not a licensed gun dealer, as defined in section 12-26.1-106 (6), C.R.S., transfers or attempts to transfer possession of a firearm to a transferee, he or she shall:

(I) Require that a background check, in accordance with section 24-33.5-424, C.R.S., be conducted of the prospective transferee; and

(II) Obtain approval of a transfer from the bureau after a background check has been requested by a licensed gun dealer, in accordance with section 24-33.5-424, C.R.S.

(b) [omitted for brevity]

(2) (a) A prospective firearm transferor who is not a licensed gun dealer shall arrange for a licensed gun dealer to obtain the background check required by this section.

(b) A licensed gun dealer who obtains a background check on a prospective transferee shall record the transfer,[/B] as provided in section 12-26-102, C.R.S., and retain the records, as provided in section 12-26-103, C.R.S., in the same manner as when conducting a sale, rental, or exchange at retail. The licensed gun dealer shall comply with all state and federal laws, including 18 U.S.C. sec. 922, as if he or she were transferring the firearm from his or her inventory to the prospective transferee.

[Subsections 3-5 omitted]

(6) The provisions of this section do not apply to:

(a) A transfer of an antique firearm, as defined in 18 U.S.C. sec. 921(a) (16), as amended, or a curio or relic, as defined in 27 CFR 478.11, as amended;

(b) A transfer that is a bona fide gift or loan between immediate family members, which are limited to spouses, parents, children, siblings, grandparents, grandchildren, nieces, nephews, first cousins, aunts, and uncles;

(c) A transfer that occurs by operation of law or because of the death of a person for whom the prospective transferor is an executor or administrator of an estate or a trustee of a trust created in a will...

[Subsections (d) through (i) omitted; these sections concern various types of temporary transfers.]

(emphasis mine)

[Mandatory disclaimer: I am not a lawyer, nor do I play one on TV. This is not legal advice. Caveat emptor.]

[JimDandy]

On the other hand, no one is required to buy a gun. You can not be prosecuted for not having a gun.

If you choose to buy a gun and buy one at a dealer (or if under state law you have to buy a gun at a dealer), you have to fill out a form; and you commit a federal crime by lying on that form (violating 18 USC 922(a)(6)).

But you can avoid having to fill out that form by simply not buying a gun. And if you don't buy a gun, you will not be prosecuted for not buying a gun.

Thus buying a gun is not compulsory, and so you may be prosecuted for failing to truthfully admit on the form a disqualifying condition.

In both examples we're talking about- in neither case does one HAVE to have a gun correct?

You don't have to have one, but if you do, in theory you have to register it.

You don't have to have one, but if you do, in theory you have to fill out a 4473-type form for it.

In both examples, IF you have A, the government requires you to have done B. And B is where you can get in trouble if you shouldn't have A.

[orangello]

http://www.drugabuse.gov/publication...ionwide-trends

That website reported about 18 Million users of marijuana/cannabis at the end of 2012. That is a large number of people to deny their Second Amendment-recognized rights (recognized not granted).

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. Marijuana/cannabis is on the federal naughty list in black and white. 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.

Until that happens, those who wish to enjoy this medicinal/recreational plant should be aware that they do so at the risk of voiding the federal government's recognition of their right to an armed self defense. I'm specifically not saying that they don't still have all of their rights, only that the current federal-level government of this country won't recognize one particular right that they have unless they refrain from marijuana/cannabis use. Those people affected will have to evaluate how much that federal recognition means to them and act accordingly to protect their current level of "freedom".

On a personal note, I think the feds have overstepped their Constitutional powers in both areas, and I think the number of people who share that opinion is growing.

[Tom Servo]

it would seem the most reasonable solution would be to remove marijuana/cannabis from the federal schedule of "controlled substances"

This would seem to be the most direct way of handling the problem. That would require federal legislation. Are there the votes for it? That's another question altogether.

The other option is reversing the courts' overreaching reading of the Commerce Clause, but that's not so likely.

In the meantime, the problem remains. People will be prosecuted, and for felonies, many of whom will be unaware they're breaking the law.

[Frank Ettin]

Originally Posted by JimDandy

In both examples we're talking about- in neither case does one HAVE to have a gun correct?

You don't have to have one, but if you do, in theory you have to register it.

You don't have to have one, but if you do, in theory you have to fill out a 4473-type form for it....

No, you are wrong.

1. In the first case, while you don't have to have a gun you actually do have a gun.
   
   
   1. And since you do have a gun, the law where you are requires that you register it.
      
      
      1. But if you register it as required by law, you must disclose your unlawful possession of the gun.
         
         
      2. So your choices are to (1) register the gun expose yourself to legal liability for being a prohibited person in possession of a gun; or (2) not register the gun and expose yourself to legal liability for not registering the gun. (Getting rid of the gun doesn't work because you have already committed the crimes of being a prohibited person in possession of a gun and failing to register the gun.)
      
      
   2. You have no choice which would allow you to escape legal liability. Therefore you can't be prosecuted for not registering since you can't be compelled to incriminate yourself by registering the gun you already possess thus incriminating yourself.
   
   
2. In the second case you don't already have a gun. You might want one, but you don't have one at the present time. But your desire for a gun creates a problem for you.
   
   
   1. You could acquire the gun at a dealer, or you might under state law be required to acquire a gun at a dealer.
      
      
      1. But if you acquire a gun at a dealer, you must fill out a form.
         
         
      2. And your truthful answer on one question on the form would disqualify you from acquiring that gun.
         
         
      3. So the only way you could acquire the gun at a dealer would be to lie in response to that question. But lying on the form is a federal crime.
      
      
   2. So you have four choices: (1) you could go without having a gun; (2) you could tell the truth on the form and not be able to acquire that gun at a dealer; (3) you could acquire the gun through a private transaction; or (4) you could lie on the form so you could acquire the gun from a dealer;.
      
      
      1. The first choice exposes you to no potential legal liability.
         
         
      2. The second choice exposes you to no legal liability, except for potential liability for being a prohibited person attempting to purchase a gun.
         
         
      3. The third choice exposes you to legal liability for being a prohibited person in possession of a gun (and perhaps for violating state law regarding acquisition of a gun).
         
         
      4. The fourth choice exposes you to legal liability for (1) lying on the form; and (2) being a prohibited person in possession of a gun.
      
      
   3. But after all of that, you still have one choice which leaves you with no legal liability: you could go without a gun. True that frustrates your desire to have a gun, but it keeps you out of jail.

[carguychris]

Originally Posted by orangello

Marijuana/cannabis is on the federal naughty list in black and white. 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... Until that happens, those who wish to enjoy this medicinal/recreational plant should be aware that they do so at the risk of voiding the federal government's recognition of their right to an armed self defense.

It makes one wonder whether the Governor and Legislature of CO were aware that their recently-passed gun-control and marijuana-legalization legislation are essentially a Catch-22 as it relates to federal law. As posted above, CRS 18-12-112 explicitly requires most firearms ownership transactions in CO to follow 18 USC § 922, thus placing any (locally) legal pot smoker in violation of the Fed's prohibition on possession of firearms by marijuana users.

[Tom Servo]

It makes one wonder whether the Governor and Legislature of CO were aware that their recently-passed gun-control and marijuana-legalization legislation are essentially a Catch-22 as it relates to federal law.

That's an idea that's been going around quite a bit lately. Given that state law already has provisions explicitly barring medical marijuana users from getting CCW permits, I can't believe this possibility wasn't brought up.

It's tempting to look at this as backdoor gun control, but unless we have proof of such intent, we're better off avoiding the allegation.

[Frank Ettin]

Originally Posted by carguychris

...As posted above, CRS 18-12-112 explicitly requires most firearms ownership transactions in CO to follow 18 USC § 922, thus placing any (locally) legal pot smoker in violation of the Fed's prohibition on possession of firearms by marijuana users.

But a marijuana user (even if legal under state law) will always commit the federal felony of being a prohibited person in possession of a gun, even if he otherwise lawfully (e. g., before taking up marijuana) acquired the gun without filling out a 4473 (e. g., acquired it privately in Colorado before the current law became effective, acquired it elsewhere privately before becoming a Colorado resident, or acquired it through one of the exceptions under Colorado law).

[JimDandy]

This statement:

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:

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? There are several, the gang/drug correlation is the first and obvious one. At least one, and probably most if not all, State(s) have legislation prohibiting the carrying of firearms while intoxicated- and given the technical logjam over driving while high in my State, the test for carrying while high is probably equally problematic.

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

The requirement of filing the registration form (IS-52a) is incriminatory within the meaning of the Self-Incrimination Clause because the admission of Party membership, required by the form, might be used as an investigatory lead to or evidence in a criminal prosecution.

We noted that wagering was a crime in almost every State, and that 26 U.S.C. 6107 required that lists of wagering taxpayers be furnished to state and local prosecutors on demand. We concluded that compliance with the statute would have subjected petitioner to a "real and appreciable" 6 risk of self-incrimination.

[Slamfire]

Yes there is hypocrisy all around. Admit to being a user of marihuana and you may lose more than just your right to keep and bear arms.

At least the federal Government is not aggressively pushing for inforcement of marihuana laws. What we don’t need is another Mabel Walker Willebrandt http://en.wikipedia.org/wiki/Mabel_Walker_Willebrandt . According to the PBS show on Prohibition, no one told Mabel that the law was a joke and she aggressively used her position as US Assistant Attorney General to enforce what was, the absolute worst amendment ever put into the constitution. The societal travail that our country underwent due to the blockheads in Congress for passing prohibition and the blockheads in the Executive branch for enforcing prohibition was just horrible and we are still living with organized crime they created .

I consider the bans on Marihuana to be a good example of how industries use Government to eliminate competitors. The wine and alcohol industry eliminated a competitor in the area of recreational drugs, and the wood and pulp growers uses the laws to eliminated competition from industrial hemp.

I guess the question I am wrestling over is, “should one be honest and truthful to the Corporate interests who run the Government” ? There is no easy answer. Still, until such time, if ever, society insists on changing the laws at a National Level, understand they penalties for honesty.

[Tom Servo]

Did you mean you hadn't heard a reasonable legal argument for prohibiting those who use marijuana/cannabis?

There may not have been one, but somebody will have to step up to be the test case. That's going to be problematic and expensive, and the shadows of Wickard and Raich are going to cloud the proceedings.

Of course, this may be happening fairly soon as out-of-staters go to Colorado, purchase marijuana, then get into trouble in their home states. DUI laws in many places focus on the presence of metabolites in the blood rather than visible intoxication. Furthermore, transporting it across state lines opens the consumer up to significant trafficking charges.