Gun ownership and the legalization of marijuana

[CO_GunShooter]

Hello,

I've been shooting and collecting guns for about two years now, and I have a serious question. My state just legalized marijuana, but I'm curious if marijuana use and gun ownership can go hand in hand, if we treat weed like alcohol, i.e. don't shoot under the influence and what not. Thoughts?

[Frank Ettin]

Welcome to TFL, and it's a good thing you asked the question.

Originally Posted by CO_GunShooter

...My state just legalized marijuana, but I'm curious if marijuana use and gun ownership can go hand in hand,...

They absolute do not, if for no other reason than that under federal law a user of marijuana is still an unlawful user of a controlled substance, no matter what state law is. Therefore, a user of marijuana commits a federal felony by possessing a gun.

This was discussed at length here.

Here's the deal with marijuana:

1. With regard to buying a gun from a dealer or possessing a gun or ammunition, state law is irrelevant.
   
   
2. Under federal law (the Controlled Substances Act, 21 USC 801, et seq.), marijuana is a Schedule I controlled substance which may not, therefore, be lawfully prescribed or used. Therefore, any user of marijuana, even if legal under state law, is, under federal law, an unlawful user of a controlled substance.
   
   
3. Under federal law, a person who is an unlawful user of a controlled substance is prohibited from possessing a gun or ammunition (18 USC 922(g)(3)). Therefore, any one who is a user of marijuana, even if legal under state law, is a prohibit person and commits a federal felony by possessing a gun or ammunition.
   
   
4. Under federal law, anyone who is a user of marijuana, even if legal under state law, is an unlawful user of a controlled substance and must answer "yes" on the form 4473 to the question about being addicted to or the unlawful user of a controlled substance.
   
   
5. An "unlawful user of a controlled substance" is defined in ATF regulations, in pertinent part, as follows (27 CFR 478.11, emphasis added):

   ....Unlawful user of ... 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....

6. As defined, it is not necessary that one be using marijuana at a particular instant to be an unlawful user. As set out in the federal regulation defining "unlawful user":

   ...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...

7. Furthermore, the regulation provides:

   ...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....

8. The regulation further provides that (emphasis added):

   ...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...

9. Making a false statement on the 4473 or being a prohibited person in possession of a gun or ammunition is punishable by up to five years in federal prison and/or a fine. And since it's a felony, conviction will result in a lifetime loss of gun rights.

[4runnerman]

^^^^^^^^^^ Yes to all that, And it's like drinking and driving- It is just not a good mixture.

[zincwarrior]

You just answered your question. One should not use or carry while under the influence of any drug that can impare your judgement or reaction times, except for the effects of Tex Mex of course.

[CO_GunShooter]

Wow, I didn't expect such an informative answer. I only asked because a friend of mine that I shoot with smoked weed recreationally in high school and now that CO has legalized weed he wants to get back into it and when he asked me about mixing the two I was stumped. It didn't seem like a good idea yet at face value it seemed legal.

[BarryLee]

So, since Mr. Obama has stated that Federal Authorities would not be targeting recreational drug users I wonder how this might apply to gun owners.

http://www.reuters.com/article/2012/...8BD0Q720121214

[Frank Ettin]

Originally Posted by BarryLee

So, since Mr. Obama has stated that Federal Authorities would not be targeting recreational drug users I wonder how this might apply to gun owners. ...

Probably not at all.

1. It'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. Gun control is also on pretty much everyone's radar. There is considerable public pressure for increased gun control and enforcement of existing laws -- especially among Obama's core constituency.
   
   
5. And the fact that there's a current policy to "soft peddle" federal prosecution of recreational marijuana use doesn't necessarily mean that will be the policy tomorrow.
   
   
6. And in any case there has been considerable recent federal activity in connection with the dispensing and cultivation of marijuana under state medical marijuana laws. See --
   
   
   • "Obama Explains Increasing Medical Marijuana Crackdowns, Raids..."
     
     
   • "U.S. raids L.A. marijuana shops..."
     
     
   • "Southern Oregon medical marijuana farm raided by federal drug agents..."
     
     
   • "2 Anaheim pot shops raided,..."
     
     
   • "Sacramento marijuana dispensary latest target of federal crackdown"
     
   
   
7. So it's highly unlikely that the Obama administration would back off enforcing federal gun laws in a State that with a more lenient marijuana laws?

[Dr Big Bird PhD]

Also, another less formal recommendation. If in Colorado, there is a card, permit, or medical recommendation that one needs or can possibly obtain that would make the procurement of Marijuana easier, avoid it at all costs. It's basically an admission of guilt to a felony according to the ATF.

For instance, if one were to participate in recreational marijuana use and/or have a medical card in California, used a firearm to defend there home in a completely legal manner, they would still be putting themselves at a severe risk of being prosecuted at a federal level for a felony.

[CO_GunShooter]

So basically a no-go unless 100% legal under Federal law, something that will probably never happen.

[HiBC]

Correct!

My compliments that you asked.

Given the climate today,beware of any policy that can make a whole segment of the population "prohibited persons"

It would be good if all the pot sellers were required to post a warning sign "Still unlawful under Federal law,this means......'"

Hmmm,good suggestion for my sheriff!

[Glenn E. Meyer]

Are states that issue a marijuana card under any requirement to inform the Feds of such?

Would an antigun state do that on purpose to get those weirdo gun owners?

[HiBC]

Now consider being the owner of a legal pot shop.I do not know what the prices are these days,but consider you are sitting on an inventory worth what?$200,or300,or $400 an ounce......

And you are cutting into the territory of the illegal drug dealers,some of which have roots in the Mexican Cartels....

Rather seems like your shop would be a gun free zone...


Could make for gruesome headlines

[kilimanjaro]

You get caught target practicing on a National Forest while in possession of pot, you lose your pot and the firearms. Federal land, federal law.

[colbad]

Some VERY good responses that understand the law. Also, keep in mind that whether or not you get prosecuted, if you are an illegal drug user the firearm can be seized and you will not get it back.

[Frank Ettin]

Originally Posted by kilimanjaro

You get caught target practicing on a National Forest while in possession of pot, you lose your pot and the firearms. Federal land, federal law.

I'm not sure what you think "Federal land, federal law" means. It strikes me as misleading.

If one is caught anywhere within the jurisdiction of the United States with marijuana and a gun, he is subject to prosecution for the illegal possession of a controlled substance and being a prohibited person in possession of a gun.

[MercyfulFate]

Basically, you cannot be a medical marijuana patient, or a legal recreational user and a gun owner due to federal law. It seems the belief that marijuana makes you a crazed, addicted killer is still en vogue. The ATF has restated this in the past so people don't forget.

The federal prohibition vs. state legalization will simply continue to prop up the black market and do nothing to end the war on drugs. It'd be nice if this country woke up in this regard, one of these days.

[SgtLumpy]

What's that question on the form you fill out when you buy any gun?

"Are you a user of narcotics or controlled substances, including marijuana?"

Is that the exact wording? I know it says "including marijuana". Not sure if it says "user" or "addicted to" or some other language.

In any case, I wouldn't think it helpful to be in court after a critical incident and have the lawyers present that you are a registered user of marijuana, which violates a federal law.


Sgt Lumpy - n0eq

[MercyfulFate]

I'm pretty sure it says "Are you an unlawful user of or addicted to any controlled substance?" or something in that realm.

[Frank Ettin]

Originally Posted by SgtLumpy

What's that question on the form you fill out when you buy any gun?

"Are you a user of narcotics or controlled substances, including marijuana?"

Is that the exact wording? I know it says "including marijuana". Not sure if it says "user" or "addicted to" or some other language....

On the April, 2012 revision of the form, it's:

Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?

The prohibiting condition is stated in the actual statute (18 USC 922(g)(3)) as:

...(3) 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));...

[hardworker]

The way the question is worded makes it where it has no teeth as a screening implement. No one would admit to it even if they were shooting up heroin in the parking lot. It's questions like that that give the anti's fuel to use against us, mainly that we cry foul when existing laws aren't enforced because they're written in such a way as to be unenforceable. The only way to make the drug use question anything other than a waste of printer ink would be to require a drug test to buy a gun.

If marijuana is made legal and sold the same way booze is there can be no way of tracking its use and no way to screen gun owner based on use of it. But smoking a doobie and going shooting is still a terrible idea.

[Frank Ettin]

No question "works" as long as people can lie (and it's not something picked up on NICS). But if you are caught in a lie, that's another federal felony. Sometimes people get caught and prosecuted for that.

[hardworker]

I'm not arguing for a wiz quiz with each purchase, but I still think that for us to sit back and say "don't blame us, he lied on the form" is pretty much telling the anti's how to fix the law to make lying harder.

[HiBC]

hardworker

Many of us have been required to submit to drug testing to get or keep a job.It is a pass/fail test.One test is the hair test.If you have smoked pot during growing a hair,it can be detected.

If a person were involved in a legitimate self defense shooting it may very well be there would be tests performed to see if the shooter was under the influence of anything.Testing positive for THC would give the prosecutor a strong card to play to the jury regarding whether judgement was impaired when the trigger was pulled.

But,that is just problem one.

Problem two,this person is now proved a prohibited person in posession of a firearm,felony.

Problem three,if this person signed a 4473,false statement.Felony.

Consider if a person is hunting,fishing,shooting,there is a reasonable chance of being checked out by an LEO,such as a game warden.The question"Do you have any weapons? May come up.Red eyes,odor,a seed ,etc can lead to a search.

The OP had a great idea! Find out what the law is,where do I stand,how can I make good choices.

To take a position"Thats all BS" well,a person can do that.It might be difficult to get a judge to agree.

[dajowi]

At least one state disagrees with the idea that medical marijuana and concealed handgun licenses are mutually exclusive:

Concealed handgun owners with Oregon medical marijuana authorizations will be allowed to keep their gun licenses after a U.S. Supreme Court decision not to hear a sheriff's legal challenge which claimed U.S. federal law trumps Oregon state law.

[Frank Ettin]

Originally Posted by dajowi

At least one state disagrees with the idea that medical marijuana and concealed handgun licenses are mutually exclusive:

Concealed handgun owners with Oregon medical marijuana authorizations will be allowed to keep their gun licenses after a U.S. Supreme Court decision not to hear a sheriff's legal challenge which claimed U.S. federal law trumps Oregon state law.

Very wrong and misleading. The U. S. Supreme Court's decision not to hear the case is not a decision on the merits and means nothing. The matter has not been decided under federal law.

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 case did not substantively address the federal law issue. In fact, the Oregon Supreme Court specifically noted (at pp. 1065 - 1066, emphasis added):

...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...

In other words: Ms. Willis would not be arrested by Oregon LEOs or prosecuted under Oregon law for carrying a concealed handgun; but she can 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).