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March 22, 2013, 10:57 AM | #1 | |
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"Prohibited person" for drug use - how does that work?
Looking at the ATFs list of "prohibited persons", every category except one is very cut-and dried; you can point to a prior conviction, a current restraining order, a current indictment, etcetera as clear evidence of the person's classification as a "prohibited person":
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"who is an unlawful user of or addicted to any controlled substance;" How do you prove that one? Note that they don't mention anything about a past conviction, or having participated in a rehab program, or anything like that. Nothing concrete that you can point to and say "this is a prohibited person". And if someone *has* been convicted of illegal drug use, are they considered a "user" for the rest of their lives? How about someone who successfully completes rehab? Surely they're not still considered to be "addicted"? How do you legally prove addiction, anyway? To me, the only circumstance where you could clearly call someone a prohibited person under that rule is if they're actually unlawfully consuming a controlled substance while they have a gun in their hand - the rule seems too 'fuzzy' to be useful in any other case. |
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March 22, 2013, 11:25 AM | #2 | |
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This is guidance from the ATF:
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March 22, 2013, 11:29 AM | #3 |
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I believe some laws are purposely written with some gray areas leaving the interpretation up to authorities who will use that grayness to fit which ever criteria they need. By the time anyone could ever work a case through the court system to challenge a ruling it won't matter anyway.
Remember "We have to pass it before we can know what's in it."
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March 22, 2013, 04:42 PM | #4 |
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I suspect that joe sixgun may be correct about the intent of that portion of the law.
New substances become "controlled substances" from time to time, and methods of use change over time; the law should allow for some adaptation to new trends in the use of such "controlled substances". I doubt the writers fully considered the current trend, or its extent, toward the use of pharmaceuticals for recreational purposes. I will resist the urge to make the accusation that it may also have been the intent of the law writer to allow for the expansion of government powers through judicial interpretation of a vague law, though it surely will cross the minds of those who read the OP. |
March 22, 2013, 07:58 PM | #5 |
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There are 19 states, (including the District of Columbia) which allow physicians to prescribe cannabis for their patients.
Current ATF rules state: "...any person who is a current user of a controlled substance in a manner other than as prescribed by a licensed physician..." Although the U.S. Supreme Court has established Congress’s constitutional authority to enact the existing federal prohibition on marijuana, principles of federalism prevent the federal government from mandating that the states actively support or participate in enforcing the federal law. While state resources may be helpful in combating the illegal use of marijuana, Congress’s ability to compel the states to enact similar criminal prohibitions, to repeal medical marijuana exemptions, or to direct state police officers to enforce the federal law remains limited by the Tenth Amendment. "United States v. Darby, 312 U.S. 100, 124 (1941): The amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers." Even if the federal government is prohibited from mandating that the states adopt laws supportive of federal policy, the constitutional doctrine of preemption generally prevents states from enacting laws that are inconsistent with federal law. Under the Supremacy Clause, state laws that conflictwith federal law are generally preempted and therefore void. Courts, however, have not viewed the relationship between state and federal marijuana laws in such a manner, nor did Congress intend that the CSA displace all state laws associated with controlled substances. Instead, the relationship between the federal ban on marijuana and state medical marijuana exemptions must be considered in the context of two distinct sovereigns, each enacting separate and independent criminal regimes with separate and independent enforcement mechanisms, in which certain conduct may be prohibited under one sovereign and not the other. Although state and federal marijuana laws may be “logically inconsistent,” a decision not to criminalize—or even to expressly decriminalize—conduct for purposes of the law within one sphere does nothing to alter the legality of that same conduct in the other sphere. The state of Oregon is issuing concealed carry licenses to patients under the Oregon Medical Marijuana program. The ATFE or federal government apparently hasn't responded with criminal indictments against anyone. Presently there are two states (Colorado and Washington) which have legalized the possession and use of a "controlled substance," (marijuana), how many more states to follow? So which is going flinch first...federal law...or state law? |
March 23, 2013, 12:40 AM | #6 | |||||||
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Here's the bottom line:
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March 23, 2013, 12:47 AM | #7 |
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As to who's going to "flinch" first, would it be the end of the world if the Feds just took marijuana off of the controlled-substance list? It doesn't even fit the definition for a "Schedule I" controlled substance in the first place (no medical use and high abuse potential).
That way, the Feds can continue to enforce the Controlled Substance Act in its entirety, while avoiding a "spitting match" with the states over the issue. And the states would be free to decriminalize or legalize it if they wanted to (which they're beginning to do anyway, regardless of the Federal government's position.) |
March 23, 2013, 01:13 AM | #8 | |
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Quote:
But that is a broad, complex and controversial subject tied in with federal drug use and abuse policy. It also goes far beyond what we discuss here. So let's not go there.
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"It is long been a principle of ours that one is no more armed because he has possession of a firearm than he is a musician because he owns a piano. There is no point in having a gun if you are not capable of using it skillfully." -- Jeff Cooper |
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March 23, 2013, 11:17 AM | #9 |
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Federal laws aside in my state chemically dependent persons are prohibited from obtaining firearms/chl licenses and are defined as one who has been convicted of use/posession 2 times within ten years prior.
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March 24, 2013, 02:23 PM | #10 |
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What I want to see more clarification on is if the prohibited person, prohibited for drugs or whatever reasons, just abides in a gun owner's home and how that affects the homeowner/gun owner's rights.
What are the gun owner alternatives? If the guns are secured from the prohibited person's access can they remain on the premises? If that is not acceptable can they be stored securely off the premises? OR will LE and the courts give NO alternatives to plain confiscation? I don't have a horse in that race but I think we will be seeing more of this type scenario and more active prosecution/persecution of lawful gun owners in that type case for lawful reasons yes but likely too for "gun control" reasons. I would not be surprised if any new gun control laws, state or federal, have a lot more to say concerning this type thing and it should be on our radar. |
March 24, 2013, 02:37 PM | #11 | |
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Quote:
So a gun not under the full and direct physical control of the gun owner (i. e., on his person or in his hands) would need to be kept in a locked safe, cabinet, case, closet or something similar to which the prohibited person does not have, and can not get, the combination or key. Now let's stay on topic please.
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"It is long been a principle of ours that one is no more armed because he has possession of a firearm than he is a musician because he owns a piano. There is no point in having a gun if you are not capable of using it skillfully." -- Jeff Cooper |
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March 24, 2013, 03:11 PM | #12 |
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Sorry. And thanks for the clarification.
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