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Old November 30, 2017, 12:55 AM   #1
highrolls
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Medical Gun Confiscation

For the legal expertise on this forum I have some concerns about the "apparently" legal gun confiscation referenced in the following article:

http://www.staradvertiser.com/2017/1...heir-firearms/

The article is dated today but the referenced action has apparently been going on for some time.

As I understand the article, this is an action based upon the conflict between state medical marijuana use (Medical issue cards) and federal law which says the use of any such addictive substance is a felony which prohibits firearm possession.

Concern 1. Is this type of state enforcement an end run around the 2nd amendment ?

Concern 2. Can other states which have recently passed similar laws simply jump on board this bandwagon ?

Concern 3. Could this action become sort of a "de facto" extension to things like purchasing beer or wine from Walmart ?

Concern 4. Am I becoming too paranoid ?
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Old November 30, 2017, 01:45 AM   #2
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The title of the article is incorrect, and the title of this thread is misleading.

The confiscation has nothing to do with anything "medical" it has to do with the persons in question having essentially admitted to committing a felony.

The people in question are not "legal marijuana users" as the article title states because they live in the U.S. and there are no "legal marijuana users" in the U.S.
Quote:
As I understand the article, this is an action based upon the conflict between state medical marijuana use (Medical issue cards) and federal law which says the use of any such addictive substance is a felony which prohibits firearm possession.
There is no conflict. The state laws simply have no weight.

They are the equivalent of my saying that it is legal for me to commit murder in spite of the state laws prohibiting murder. I don't have the power to legalize murder any more than the states have the power to legalize marijuana use/possession/sale/purchase. State law supersedes my whims just as federal law supersedes state law.

There is no such thing as legal marijuana usage in the United States. It is illegal at the federal level and federal law supersedes state law. A state law that "legalizes" something that is illegal at the federal level may prevent state law enforcement organizations from enforcing the law, but it won't change the fact that people can still be prosecuted at the federal level.

Bottom line:

Those people who wish to remain legal gun owners should avoid committing felonies. People who commit felonies should not be surprised, nor should they complain, when they find that they have lost their right to legally own/purchase/possess firearms.
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Old November 30, 2017, 02:20 AM   #3
Frank Ettin
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Quote:
Originally Posted by highrolls
....Am I becoming too paranoid ?
Yes.

The reality is that the police are taking guns that the owners, as users of marijuana, can not legally possess under federal law. Any marijuana user, even if legal under federal law, who has possession of a gun or ammunition is committing a federal crime punishable by up to ten years in federal prison. No one who uses marijuana, even if he is doing it legally under state law, should have any expectation that he may legally keep his guns.

For extensive discussions of the law relating to guns and marijuana use see the following threads:
  1. New form 4473

  2. Weed and guns

  3. Proposed changes to form 4473

  4. "Legal" Marijuana and Guns

  5. "Prohibited person" for drug use - how does that work?

  6. Gun ownership and the legalization of marijuana

  7. Firearms and Colorado pot law

  8. ATF says medical marijuana users can't buy guns of any kind

  9. ATF punishing Medical Marijuana users
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Old November 30, 2017, 04:50 AM   #4
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Frank Ettin: "Yes."

Thank you. For a thoughtful response instead of a harsh one.

I need to quote you again but cross-referencing the JohnSKa "incorrectly titled" news article.

"The reality is that the police are taking guns that the owners, as users of marijuana, can not legally possess under federal law."

Exactly, but there is a strangeness there that caused me to post this. The Local Police are announcing the taking under Federal Law based upon a persons application for the card, despite the public disregard by the state government for Federal Law (immigration). The article is not clear whether or not the turn in notice is sent to all card applicants. This would imply to me that the confiscation is being based upon an application rather than actual use. So implied intent and actual use are the same ? Since when does Hawaii local law enforce Federal Law in opposition to their own state law ? Only when it involves guns ? That is actually 2 different anomalies.

Last edited by highrolls; November 30, 2017 at 04:59 AM.
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Old November 30, 2017, 06:02 AM   #5
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Selective enforcement lulls people into investing in an unstable situation.

So long as the law is on the books,it is subject to being enforced.

Cold,hard fact,if you want to keep your 2A Rights,take care of them.
FWIW,I live in Colorado. Yogi Berra: " If you come to a fork in the road,take it"

IMO,you cannot blame a new chief of police for enforcing the law.

It appears there is a local law that is based on federal law that she is enforcing:
[QUOTE]In the letter, Ballard cites Hawaii Revised Statutes, Section 134-7 (a) as the reason for the move. That section reads: “No person who is a fugitive from justice or is a person prohibited from possessing firearms or ammunition under federal law shall own, possess, or control any firearm or ammunition therefor[/QUOTE

So,no,the local LEO is not enforcing Fed law. It is Hawaiian law.
The MedPot card pretty much documents a person as a user.

Last edited by HiBC; November 30, 2017 at 06:18 AM.
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Old November 30, 2017, 08:28 AM   #6
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Quote:
The Local Police are announcing the taking under Federal Law based upon a persons application for the card, despite the public disregard by the state government for Federal Law (immigration). The article is not clear whether or not the turn in notice is sent to all card applicants. This would imply to me that the confiscation is being based upon an application rather than actual use. So implied intent and actual use are the same ? Since when does Hawaii local law enforce Federal Law in opposition to their own state law ? Only when it involves guns ? That is actually 2 different anomalies.
As already pointed out, the Honolulu Police are enforcing State Law.

From the link you posted.

Quote:
Hawaii Revised Statutes, Section 134-7 (a) as the reason for the move. That section reads: “No person who is a fugitive from justice or is a person prohibited from possessing firearms or ammunition under federal law shall own, possess, or control any firearm or ammunition therefor.”
Quote:
Originally Posted by highrolls
This would imply to me that the confiscation is being based upon an application rather than actual use. So implied intent and actual use are the same ?
Read, Wilson v. Lynch,

https://cdn.ca9.uscourts.gov/datasto...1/14-15700.pdf

Quote:
In August, a three-judge panel of the Ninth Circuit
Court of Appeals affirmed a decision by the U.S.
District Court of Nevada, which held that the holder of
a medical marijuana card could not purchase a firearm
(Wilson v. Lynch, F.39---(2016), (2016 WL 4537376)).
https://www.cga.ct.gov/2016/rpt/pdf/2016-R-0239.pdf
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Old November 30, 2017, 08:52 AM   #7
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You'd think that a conviction would have to be on one's record before they'd actually be breaking federal gun laws.
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Old November 30, 2017, 09:03 AM   #8
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Quote:
As I understand the article, this is an action based upon the conflict between state medical marijuana use (Medical issue cards) and federal law which says the use of any such addictive substance is a felony which prohibits firearm possession.
It's not that it's a felony. It is that marijuana is an illegal drug. Federal law makes firearm possession illegal while a user of controlled substances. No "conviction" of a crime is required. the simultaneous possession of the firearm and being a user of a controlled substance (even if one's system is clean at the moment) is the federal crime. State laws may vary.
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Old November 30, 2017, 12:22 PM   #9
Frank Ettin
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Quote:
Originally Posted by HiBC
...The MedPot card pretty much documents a person as a user.
Or at least is probably cause to believe he is a user. See the discussion of Wilson v. Lynch, below.

Quote:
Originally Posted by SonOfScubaDiver
You'd think that a conviction would have to be on one's record before they'd actually be breaking federal gun laws.
One federal crime would be the possession/use of marijuana, and if one is prosecuted for that he will indeed need to be convicted in court before he goes to jail. The violation of federal guns laws would be being a prohibited person in possession of a gun, and one would need to be prosecuted and convicted of that before going to jail.

But any use of marijuana is unlawful under federal law, and guns in the possession of someone who has been identified as a user of marijuana are contraband and can not be possessed by that person. So once it's determined that someone is a user of marijuana he can't lawfully keep his guns.

Quote:
Originally Posted by steve4102
...Read, Wilson v. Lynch....
Yes, let's. It's really a very narrow decision.

One reason I'm going into this case in some detail is that I've seen many people (but not Steve here -- he knows better) misinterpreting the case to say that while a user of marijuana can't buy guns, he can keep the ones he has. That's wrong, and I'll explain why it's wrong and what Wilson really means.

The Ninth Circuit's ruling in Wilson does not abrogate or affect in any way the existing law that an unlawful user of a controlled substance is prohibited under federal law from possessing a gun or ammunition. So an unlawful user of a controlled substance is not only prohibited from buying guns or ammunition, but also may not lawfully keep any guns he has.
  1. Wilson v. Lynch (Ninth Circuit, No. 14-15700, 2016) did not address in any way whether it is lawful for an unlawful user of a controlled substance to possess a gun or ammunition.

    1. The Ninth Circuit had already ruled that 18 USC 922(g)(3), making it illegal for an unlawful user of a controlled substance to possess a gun or ammunition, is constitutional and applicable to an unlawful user of marijuana (U.S. v. Dugan, 657 F.3d 998, (9th Cir., 2011) at 999):
      Quote:
      ...We consider the constitutionality of 18 U.S.C. § 922(g)(3), which makes it illegal for “any person ... who is an unlawful user of or addicted to any controlled substance ... 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.” Reviewing de novo United States v. Vongxay, 594 F.3d 1111, 1114 (9th Cir.), cert. denied, ––– U.S. ––––, 131 S.Ct. 294, 178 L.Ed.2d 193 (2010), we uphold the statute against this Second Amendment challenge.....
    2. Ms. Wilson did not challenge 18 USC 922(g)(3), and the issue of the application of 18 USC 922(g)(3) to her was not even considered.

    3. 18 USC 922(g)(3) is the federal law which makes it illegal for anyone in one of several classes of persons to possess a gun or ammunition. But Wilson did not challenge that statute, nor did she have standing to do so (Wilson, slip op., at 9-10, footnotes omitted):
      Quote:
      ...First, as appellant’s counsel conceded at oral argument, Wilson lacks standing to challenge 18 U.S.C. § 922(g)(3). Standing requires, among other elements, a “concrete and particularized” injury that is “actual or imminent, not conjectural or hypothetical.” Lujan v Defs. of Wildlife, 504 U.S. 555, 560 (1992) (internal quotation marks omitted). Section 922(g)(3) criminalizes possession or receipt of a firearm by a unlawful drug user or a person addicted to a controlled substance. Wilson has not alleged that she is an unlawful drug user or that she is addicted to any controlled substance. Nor has she alleged that she possessed or received a firearm. Accordingly, Wilson has not alleged that § 922(g)(3) has injured her in any way. For the same reasons, she also has not shown a “genuine threat of imminent prosecution” under § 922(g)(3), as is generally required of plaintiffs raising pre-enforcement challenges to criminal statutes outside the First Amendment context. San Diego Cty. Gun Rights Comm. v. Reno, 98 F.3d 1121, 1126 (9th Cir. 1996) (internal quotation marks omitted). Accordingly, we affirm on the ground of lack of standing the district court’s dismissal of Wilson’s claims concerning § 922(g)(3)....

  2. Wilson addressed only whether someone with a medical marijuana card may be prevented from buying a gun.

    1. Ms. Wilson's challenge, and therefore the opinion in Wilson, was narrow (Wilson, slip op. at 10):
      Quote:
      ...Wilson does have standing, however, to raise her remaining claims challenging 18 U.S.C. § 922(d)(3), 27 C.F.R. § 478.11, and the Open Letter. Wilson alleges that § 922(d)(3)’s ban on sales of firearms to individuals whom sellers have reasonable cause to believe are drug users, along with the regulations and guidance implementing this ban, prevented her from purchasing a firearm....
    2. 18 USC 922(d) reads, in pertinent part:
      Quote:
      (d) It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person—
      ...

      (3) 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));...
    3. Thus 18 USC 922(d) does not address the legality of a person within a prohibited class possessing a gun or ammunition. It only addresses the legality of someone transferring a gun or ammunition when one knows or has reasonable cause to believe that the transferee is a prohibited person.

    4. Therefore, the Ninth Circuit in Wilson considered only the validity of 18 USC 922(d) prohibiting transfer of a gun to someone the transferor knows or has reasonable cause to believe is a prohibited person together with ATF guidance to FFLs based on that statute.

  3. Therefore, a person who is an unlawful user of a controlled substance violated federal law (specifically 18 USC 922(g)(3)) by possessing a gun or ammunition and may not lawfully have a gun or ammunition in his possession.
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Old December 1, 2017, 05:20 AM   #10
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Quote:
People who commit felonies should not be surprised, nor should they complain, when they find that they have lost their right to legally own/purchase/possess firearms.
Any felony? Because there are scores of thousands of new felons up in CT since they passed their slow-motion confiscation program.

http://articles.courant.com/2014-02-...gistration-law

Do the people who elected not to sign up to have their weapons confiscated upon their deaths have a reason to complain?
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Old December 1, 2017, 07:06 AM   #11
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Quote:
Originally Posted by Frank Ettin
...We consider the constitutionality of 18 U.S.C. § 922(g)(3), which makes it illegal for “any person ... who is an unlawful user of or addicted to any controlled substance ... 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.” Reviewing de novo United States v. Vongxay, 594 F.3d 1111, 1114 (9th Cir.), cert. denied, ––– U.S. ––––, 131 S.Ct. 294, 178 L.Ed.2d 193 (2010), we uphold the statute against this Second Amendment challenge.....
How is "possession" defined in this statute?

As it pertains to this statute is there a difference between Possession and ownership?

I found this, and it didn't really help me understand.

https://legal-dictionary.thefreedict...com/possession
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Old December 1, 2017, 08:45 AM   #12
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Quote:
As it pertains to this statute is there a difference between Possession and ownership?
Yes, probably. Trusts have been used for this purpose so that one who is prohibited from possession can still cause them to pass by inheritance or liquidated legally.
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Old December 1, 2017, 03:07 PM   #13
Frank Ettin
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Quote:
Originally Posted by steve4102
.....How is "possession" defined in this statute?

As it pertains to this statute is there a difference between Possession and ownership?

I found this, and it didn't really help me understand.

https://legal-dictionary.thefreedict...com/possession
"Possession" is a good, English word, and its normal meaning is:
Quote:
1 a : the act of having or taking into control...
So possession is in a sense broader than ownership. One may have possession of something without being the owner. And one may own something without having [at the time] possession of it.

Also, unless a word is specifically defined in a statute it will be read and applied by a court according to its ordinary meanings. See Perrin v. United States, 444 U.S. 37 (United States Supreme Court, 1979), at 42:
Quote:
...A fundamental canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning...
So, for example, I have possession of the things here on my desk near me not because I own them (which in this case I do), but because they are under my control. I can pick up a pen here and use it. I can hand this stapler to my wife, who just entered my study so she can use it (or I can physically prevent the neighbor kid, who has no business being here anyway, from picking up my letter opener.) And if something on my desk has been loaned to me, so I don't own it, it's still here and I can handle and use it.

The courts have applied the same reasoning to prohibited-persons-in-possession-of-a-gun cases:
  1. See U.S. v. Barron-Rivera, 922 F.2d 549 (C.A.9 (Wash.), 1991) in which Barron-Rivera's conviction for being an alien in possession of a firearm was affirmed without him even having had to touch a gun. Barron-Rivera's claimed reversible error in that the government failed to prove the necessary intent.

    The court of appeal noted, at 551:
    Quote:
    ...Barron-Rivera argued that the gun was in his wife's residence at the time he re-entered the United States and moved back into that residence. Accepting that contention, the district court, nonetheless, found that Barron-Rivera's possession of the firearm was voluntary because he permitted the firearm to remain in the house after he acquired knowledge of its presence....
    In affirming the conviction, the court of appeal found, at 551 -- 552:
    Quote:
    ...In other words, by continuing to reside in the apartment in which the gun was located, he voluntarily and knowingly possessed the gun...
  2. See, also, United States v. Huet, 665 F.3d 588 (3rd Cir., 2012), in which the gun a prohibited person was charged with illegally possessing was not secured against the prohibited person's access, supporting both the prohibited person's conviction for unlawful possession of a gun and the indictment of his cohabitant. From the opinion (at pg. 593, emphasis added):
    Quote:
    ...on June 6, 2008, a valid search warrant (the “search warrant”) was executed on the couple‟s Clarion County home. Agents seized an SKS, Interordnance M59/66 rifle (“SKS rifle”) from an upstairs bedroom.

    Although Huet is legally permitted to possess a firearm, Hall was convicted in 1999 of possessing an unregistered firearm, in violation of 26 U.S.C. § 5861(d), and is therefore prohibited from owning or possessing a firearm. After being informed of the raid, Huet allegedly told investigators that the guns in the house belonged to her and that it was not illegal for her to purchase weapons. Despite Huet‟s assertions that she alone possessed the SKS rifle, the Government sought and obtained an indictment charging Hall with illegal possession of the weapon, and Huet with aiding and abetting Hall‟s possession....
    So the gun Hall, a convicted felon, was indicted for unlawfully possessing, belonged to his cohabitant, Huet. It appears to have been undisputed that Huet could lawfully possess firearms. Nonetheless, she was indicted for aiding and abetting Hall's unlawful possession of gun because Huet's gun wasn't secured against access by Hall.
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Old December 1, 2017, 09:27 PM   #14
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We all knew this was coming in some form, and probably much more. They revised question 11e on the ATF Firearm Transaction Record to include a warning that all marijuana use or possession is illegal under federal law.

I live on Colorado, where marijuana is "pseudo-legal" (for lack of a better term). I won't touch the stuff, or the marijuana business in any way. I won't even accept a narcotic pain med prescription from my doctor/dentist because my name would go into a government database when I fill it in CO.
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Old December 1, 2017, 09:46 PM   #15
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"Selective enforcement lulls people into investing in an unstable situation."

Thank you HiBC. You certainly have a way with words. That is the most accurate and complete statement I have seen to describe my reactions to these events of late.

"So,no,the local LEO is not enforcing Fed law. It is Hawaiian law." -HiBC

I do not know how I missed that in such a short news article. I think I was just seeing it as a recap of Federal law and missed the local part.

"Read, Wilson v. Lynch," - steve4102

Thank you steve4102. Interesting read and evidence to support the second concern in the opening post.

"It's not that it's a felony. It is that marijuana is an illegal drug." -Armorer-at-Law

Yes, that is a confusion factor for me and a very concise summary of what I think I got from the JohnKSa post.
In that regard, how does publius42's post fit it there with the absense of the drug part ?

OK back to Wilson v. Lynch and question is for Frank Ettin : As I understand my reading, this case began as an attempt by Ms Wilson to purchase a firearm from her LGS and when the LGS became aware of her Medical Marajuana card, refused to sell to her. So far so good. It is not clear to me how the LGS became aware of the card and whether or not the 4473 was completed and refused by the LGS or the transaction was refused at the very start ?
Maybe that does not matter. It seems to me that this case exists because Ms Wilson BELIEVED that she could by a firearm and that her card situation was not a crime ? (This is what I think SonOfScubaDiver was asking as well)

OK. finally I can go back to the JohnKSa post. I implied his post to be "harsh". I did not mean that in a negative way, more like "That's the way it is,like it or not." Now I will quote the harshest part of his post:
"There is no conflict. The state laws simply have no weight. "

This has prompted me to do a lot more reading. I have been astounded to see the numbers of estimated card holders in the states that issue such cards. While there may be no legal conflict, how many of these large numbers are like Ms Wilson and do not know they have lost their 2nd Amendment rights ?
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Old December 1, 2017, 10:49 PM   #16
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MAYBE I can understand how a person who has never purchased a firearm before,never filled out a form 4473.... and never had an interest in firearms law could be caught unaware.If you ever have filled out a 4473,the key questions at least raise the issue "Are you a user of or addicted to..."

Maybe ,like the cigarette warning label,it would be a courtesy for Doctors issuing pot prescriptions to advise the patient of Constitutional Side Effects,maybe pot shops and drug dealers should require signing a waiver "I understand I give up my RTKBA if I purchase,posess,or use"
But that would be on the pot industry.
Maybe we need the equivalent of a 4473 and a background check to buy pot!!
"Are you or do you intend to be the owner,posessor,transferer or transferee of any firearm or ammunition?" And if you check "Yes" you can't buy pot!

Who but myself is ultimately responsible for preserving my rights?
I can have ,for example,a limited amount of empathy for a friend who gets a DUI. Costly,inconvenient,...it messes up life. But he is NOT a victim. That DUI ticket might save lives,including his. The LEO was doing his job.Overall,its good to keep drunks from behind the wheel Agreed?
In Colorado,getting a DUI means you don't have the right sense to have a concealed carry permit.Hmmm...

If a couple is having a domestic dispute,is the state obligated to arrive,produce a clip board,and get a signed statement from the couple acknowledging "Any domestic violence will result in your arrest and forfeiture of your Second Amendment Rights"? Or should that be part of the marriage license?
Do we have a lot of sympathy for the guy who says " You mean just because I gave her two black eyes and choked her a little three years ago means I can't buy my honor student son a 30-30 and take him deer hunting?

Renouncing citizenship,a dishonorable discharge,etc....No Life Referee shows up and asks "Are you sure you want to do this? You will lose your guns,you know"

It IS sad folks are so unaware . But ultimately,you and I are responsible for knowing and remaining within the law.

And how we feel about a particular law ,including pot,"selective compliance" might charge a high price. And on some level,we know that. Then we deny it.

Selective enforcement can hurt people...we can argue. Or does it enable people to hurt themselves?
Ultimately it comes down to selective compliance,doesn't it?. "I don't buy into this law,so I can break it? Many people get away with it,I will,too?
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I was disillusioned!! It was sad.Uncomfortable...Even (gasp) painful!!!

Enter the words :" Illusion is prerequisite to disillusion"........Who owns my illusions?
And then came :"Disillusionment is the birth pain of Truth."

That gets a fellow over "Its not fair" and such like. That "Escaping Reality"stuff farms up plenty of illusions. Like what "Should be" vs "What is"

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Old December 1, 2017, 11:31 PM   #17
Frank Ettin
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Quote:
Originally Posted by highrolls
...OK back to Wilson v. Lynch and question is for Frank Ettin : As I understand my reading, this case began as an attempt by Ms Wilson to purchase a firearm from her LGS and when the LGS became aware of her Medical Marajuana card, refused to sell to her. So far so good. It is not clear to me how the LGS became aware of the card and whether or not the 4473 was completed and refused by the LGS or the transaction was refused at the very start ?....
Although I don't know this for sure and haven't been able, in the course of cursory research, to find good information about the backstory of Wilson v. Lynch, it has all the earmarks of a "set up job."

The ATF had previously sent a letter to FFLs advising them that they could not transfer a gun to anyone with a medical marijuana card. Wilson, together with others, decided to challenge the ATF's instructions. So they set up a situation to serve as the basis of a lawsuit to test the validity of the ATF instructions to FFLs.

Accordingly, Wilson got a medical marijuana card, but did not use marijuana or other illegal drugs. She did not at the time possess any guns. She went to buy a gun at a small shop in a small community and made sure the dealer knew that she had a medical marijuana card. As expected, the dealer refused to sell her a gun. She now had a nice, clear, tightly controlled situation on which to base a lawsuit testing exactly what she wanted to test.

This sort of thing is not uncommon, especially in civil rights litigation. Lawyers' look for, or arrange, a factually clean situation, without extraneous issues. That way they can expect a focused court decision.

Quote:
Originally Posted by HiBC
...If a couple is having a domestic dispute,is the state obligated to arrive,produce a clip board,and get a signed statement from the couple acknowledging "Any domestic violence will result in your arrest and forfeiture of your Second Amendment Rights"

Renouncing citizenship,a dishonorable discharge,etc....No Life Referee shows up and asks "Are you sure you want to do this? You will lose your guns,you know"

It IS sad folks are so unaware . But ultimately,you and I are responsible for knowing and remaining within the law.

Selective enforcement can hurt people...we can argue. Or does it enable people to hurt themselves?
Ultimately it comes down to selective compliance,doesn't it?. "I don't buy into this law,so I can break it? Many people get away with it,I will,too?...
Good summary. The bottom line is that each of us is responsible for understanding laws which can affect the things we do, and the fact that someone hasn't been prosecuted for something is not a reliable indication of what the law is.

Prosecutorial discretion (a better term than "selective enforcement") is, and always will be a fact of life. It reflects the reality that (1) persons accused of crimes have a constitutional right to a speedy trial; and (2) resources available to prosecutors and courts are limited. Prosecutors out of necessity must have discretion as to how to use the limited resources available. So a prosecutor might not pursue certain violations because other violations are more socially significant and better warrant his attention.

But the key word is "discretion." No one can count on it.
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Last edited by Frank Ettin; December 2, 2017 at 12:11 AM. Reason: correct typo
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Old December 3, 2017, 08:50 PM   #18
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Thanks Frank.

I have a hypothetical possession question.

This thread is about "confiscation" in the state of Hawaii. Hawaii has firearms registration, so the State in theory knows who owns/possesses what.

Lets say a resident of Hawaii, has a few registered firearms and also a Medical Marijuana card. This person is is violation of both State and federal law by having a firearm in his/her possession.

Would it be legal for this person to remove the firearms from his/her home, give them to a friend or family member to secure in a locked safe that the owner did not have access to, or is the fact that they own the registered firearm all that is required to be in violation of the law?
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Old December 3, 2017, 09:36 PM   #19
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Thanks steve4102. What an excellent way to focus in on the possession versus ownership circumstance. +1
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Old December 3, 2017, 11:10 PM   #20
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Quote:
Would it be legal for this person to remove the firearms from his/her home, give them to a friend or family member to secure in a locked safe that the owner did not have access to, or is the fact that they own the registered firearm all that is required to be in violation of the law?
Not a lawyer, and am not offering legal advice, just making an observation...

Logic would suggest that the same rules should be applied as are applied when a prohibited person is living in a home with firearms. Say, Mom & Dad have some guns, but JR gets a felony stupid conviction, and becomes a prohibited person thereafter...

As long as Jr cannot access the guns, (obtain possession) both he and the guns can live in the same house.

The guns locked up, and JR doesn't know the combination, or have access to the keys, then all good.

But, if the key to the safe is on Dad's key ring, with his car keys, and he habitually hangs them on a hook in the kictchen (where JR could get them) THEN the guns are legally in JR's possession. And he's in violation of the law, and so is Dad, for making firearms available to a prohibited person (by "allowing" JR access to the key).

With some things (and particularly guns) the law doesn't require you to actually DO something to violate it. The fact that you COULD DO something is enough.

I would think that if you gave away (surrendered possession) of your guns when you got a medical pot card there would be very little to prosecute.

But, often the law, and the people enforcing it don't do what I think ought to be done.
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Old December 4, 2017, 12:02 AM   #21
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There is some federal authority to suggest that a prohibited person may lawfully have legal title to guns he can't physically possess.

In U.S. v. Casterline, 103 F.3d 76 (C.A.9 (Or.), 1996), the 9th Circuit set aside a conviction for being a felon in possession of a gun, because the conviction was based solely on evidence of ownership, but under circumstances in which the defendant could not possibly have had access to or possession of the guns. Casterline was in prison at the time, and the guns were in the sheriff's department evidence locker. As the Ninth Circuit wrote in Casterline, at 79 (emphasis added):
Quote:
...The felon-in-possession statute is prophylactic, intended "to keep guns out of the hands of those who have demonstrated that 'they may not be trusted to possess a firearm without becoming a threat to society.' " Scarborough v. United States, 431 U.S. 563, 572, 97 S.Ct. 1963 1968, 52 L.Ed.2d 582 (1977). Ownership without physical access to, or dominion and control over, the firearm does not constitute possession. If the felon owns a firearm, but does not actually possess or have dominion and control over it, then he does not possess the firearm for purposes of 18 U.S.C. § 922(g). ....
But there is also some federal authority to suggest that upon becoming a prohibited person one's rights to control disposition of the firearms he must dispose of might be subject to some constraints. See Henderson v. United States (Supreme Court, No. 13–1487, 2015) in which Henderson became a prohibited person and sought to direct the transfer of his guns. In finding in favor of Henderson, the Court said (Henderson, slip op at 7 -- 8, emphasis added):
Quote:
...a court facing a motion like Henderson’s may approve the transfer of guns consistently with §922(g) if, but only if, that disposition prevents the felon from later exercising control over those weapons, so that he could either use them or tell someone else how to do so. One way to ensure that result, as the Government notes, is to order that the guns be turned over to a firearms dealer, himself independent of the felon’s control, for subsequent sale on the open market. See, e.g., United States v. Zaleski, 686 F. 3d 90, 92–94 (CA2 2012). Indeed, we can see no reason, absent exceptional circumstances, to disapprove a felon’s motion for such a sale, whether or not he has picked the vendor. That option, however, is not the only one available under §922(g). A court may also grant a felon’s request to transfer his guns to a person who expects to maintain custody of them, so long as the recipient will not allow the felon to exert any influence over their use. In considering such a motion, the court may properly seek certain assurances: for example, it may ask the proposed transferee to promise to keep the guns away from the felon, and to acknowledge that allowing him to use them would aid and abet a §922(g) violation. See id., at 94; United States v. Miller, 588 F. 3d 418, 420 (CA7 2009). Even such a pledge, of course, might fail to provide an adequate safeguard, and a court should then disapprove the transfer. See, e.g., State v. Fadness, 363 Mont. 322, 341–342, 268 P. 3d 17, 30 (2012) (upholding a trial court’s finding that the assurances given by a felon’s parents were not credible). But when a court is satisfied that a felon will not retain control over his guns, §922(g) does not apply, and the court has equitable power to accommodate the felon’s request….
That's federal law, and Hawaiian law might be more restrictive. If Hawaiian law is less restrictive, federal law will control.
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Old December 4, 2017, 12:13 AM   #22
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I'm not a lawyer,either.
Most all of these prohibited persons laws,and the workarounds,are about felonies. High stakes game.
Be careful about heading deeper into the swamp.

And who you take with you into the swamp.

I'm not a lawyer,but it might be that TRANSFERING a firearm is a crime for someone who is a user of controlled substance(prohibited person)

You might check into the fine print about "Straw Purchase". That's where the clever prohibited person gets his brother or friend to buy a firearm for him.

You see,whoever holds and returns the firearms to the prohibited,someday,may not appreciate being put in the position of being a felon...multiple counts. Are you legally absolutely certain that the "Straw Purchase" law does not apply to even a brother..if its about providing a prohibited person with a gun? I'd err on the careful side.If I was the brother,I'd say "Sorry,I have to keep it till a year after your Dr "unsubscribes" your med pot card and you show 4 passed drug tests over the subsequent year. Maybe that gets you off "User" status.I don't know.It might if you have never been arrested or convicted of anything that makes you prohibited.

The prohib person person may have to assess the value of the firearms collection.
Example? A Ruger 10-22,a Mossberg 12 ga,an SKS and a Glock 19 might amount to a liquid $1000.

What does a retainer for an attorney cost?

Last edited by HiBC; December 4, 2017 at 12:33 AM.
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Old December 4, 2017, 12:24 PM   #23
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Quote:
Would it be legal for this person to remove the firearms from his/her home, give them to a friend or family member to secure in a locked safe that the owner did not have access to, or is the fact that they own the registered firearm all that is required to be in violation of the law?
The same state law that required them to be registered in the first place probably requires that registration be changed when possession is transferred.
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Old December 4, 2017, 07:17 PM   #24
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Must use be both contemporaneous and frequent

Hawaii is in the Ninth Circuit and the Ninth has ruled that for the purposes of the firearm prohibition use of a drug must be must be contemporaneous with possession of a firearm. Other Circuits have further held that such use must also be infrequent or regular. So it is not clear to me, but may be if I did a lot more research for which I have no desire, that the Hawaii card is sufficient to make a holder a prohibited person. However, it may be enough to provide probable cause for the police to confiscate weapons during an investigation as the card tends to establish that one is a regular user.
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Old December 5, 2017, 01:52 AM   #25
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The same state law that required them to be registered in the first place probably requires that registration be changed when possession is transferred.
Would we then have to define "transferred"?
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