4473 and the 5th Amendment

I disagree , read the quote by the atf . Nowhere does it ask the applicants opinion. It gives several examples as to how to conclude if you are prohibited. As I recall they all had some sort of failed test , arrest or other documentation of said issue .

I’m NOT saying if you used yesterday and plan to use tomorrow and do not use today when you fill out the paperwork you’re gtg . There’s definitely some nuances to this . If you haven’t in a while and have no plans to in the future , I’d say that’s good enough .
 
Metal god said:
...If you haven’t in a while and have no plans to in the future , I’d say that’s good enough...
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It's nice that you say that would be good enough, but your opinion doesn't count. What would count is what the U. S. Attorney says, and, if one is really unlucky, what a jury says.

And if the U. S. Attorney and a jury decide it's not good enough, the schlimazel getting the bad news is looking at up to 10 years in federal prison and a lifetime loss of gun rights.

So since so much is potentially at stake, perhaps you'd like to outline the case law you reviewed to lead you to you conclusion about what would be good enough.
 
Why do you need case law when you have the guidance it self .

"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."
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It seems reasonable to call that awhile . If it's been awhile sense one has used and one has no intention on using again . How could that possibly be considered actively engaged in such conduct.. Because there is no specific time frame stated the guidance is ambiguous at best . If a law or statute is ambiguous who does that favor ? Then there's the fact if there is no documentation of said use regardless of timeframe . How does that get figured out if you have the 5th .

Again I'm not trying to say people should be playing games with the law . Only looking at the text I've been presented and trying to give it an honest look see .
 
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Just for the sake of argument, where does the presumption of innocence figure into it, if it does, at all???

Using the example of a bank robber, on the run, (just for an example not involving drugs) ok, so, he did rob a bank, BUT he's not caught, (yet) not arrested, charged, or convicted, so is he legally a bank robber?? The govt has no proof, until he's convicted, right?

Sure, he's going to lie, and say he didn't do it, but until a court rules he did, then is he actually lying, in the legal sense??

I have seen, over the years, many examples where common sense and legal status are not always 100% the same.

Isn't that one of the things involved, here???
 
44 AMP said:
Just for the sake of argument, where does the presumption of innocence figure into it, if it does, at all???

Using the example of a bank robber, on the run, (just for an example not involving drugs) ok, so, he did rob a bank, BUT he's not caught, (yet) not arrested, charged, or convicted, so is he legally a bank robber?? The govt has no proof, until he's convicted, right?

Sure, he's going to lie, and say he didn't do it, but until a court rules he did, then is he actually lying, in the legal sense??
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There is no "legal sense" vs. non-legal sense. If he robbed a bank, he's a bank robber. Period, full stop. If he is asked if he robbed a bank and he says "No," then he's a liar. Period, full stop. The fact that he hasn't been convicted only means that he hasn't (yet) been convicted, it doesn't mean he isn't a bank robber. The fact that he hasn't been convicted of perjury or making a false statement doesn't mean he isn't a liar.
 
There is no "legal sense" vs. non-legal sense. If he robbed a bank, he's a bank robber. Period, full stop. If he is asked if he robbed a bank and he says "No," then he's a liar. Period, full stop.
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That's not true - full stop haha . What if they are acquitted ? Are you saying they "were" a bank robber until acquitted ? What happened to innocent until proven guilty ? I believe that's the point here . If nothing is legally proven how can you be guilty of it . We are talking about the law and courts correct ? Not what we know is right and wrong ?
 
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That would be the common sense way to look at it...

Now, explain why every reporter in the nation says "alleged" until there is a conviction.....

I feel confident they aren't doing it just to follow the nuances of the English language.
 
Metal god said:
There is no "legal sense" vs. non-legal sense. If he robbed a bank, he's a bank robber. Period, full stop. If he is asked if he robbed a bank and he says "No," then he's a liar. Period, full stop.
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That's not true - full stop haha . What if they are acquitted ? Are you saying they "were" a bank robber until acquitted ? What happened to innocent until proven guilty ? I believe that's the point here . If nothing is legally proven how can you be guilty of it . We are talking about the law and courts correct ? Not what we know is right and wrong ?
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I don't know if you are serious or if you're joking. Do you really believe that there have never been cases in which a guilty party managed to get acquitted at trial? If Sum Dood robs a bank -- that's a fact. He robbed a bank -- which means that he IS a bank robber.

He is a bank robber from the moment he hands the teller a note that says, "This is a robbery, put all the money in this bag and hand it to me." Legally, he is presumed to be innocent until proven guilty beyond reasonable doubt in a court of law -- but he robbed a bank, so he is NOT innocent, even if the law says he is presumed to be. If he is never caught, would you say that he is NOT a bank robber? If not, where did he get that extra $10,000 he came home with?

If he is arrested and tried, and he has a good attorney while the state has a poor prosecutor and the police did a lousy job collecting evidence so he gets acquitted -- are you seriously saying that he ISN'T a bank robber? Of course he's a bank robber -- he's just a lucky bank robber who got away with it.

The same thing applies to drugs. The question on the 4473 doesn't ask if you have been convicted of using illegal drugs. It doesn't ask if you have been arrested for using illegal drugs. It asks if you ARE a user of illegal drugs or ARE addicted to them.
 
Lets ask it this way , if you were found not guilty of doing drugs and answered no on the 4473 , did you legally commit perjury ? Are you a prohibited person ?
 
Metal god said:
if you were found not guilty of doing drugs and answered no on the 4473 , did you legally commit perjury ? Are you a prohibited person ?
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If you were, in fact, either a user of illegal drugs or addicted to them, then

1. Yes.
and
2. Yes.

18 U.S. Code 922 said:
(a) It shall be unlawful --
...
(6) for any person in connection with the acquisition or attempted acquisition of any firearm or ammunition from a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, knowingly to make any false or fictitious oral or written statement or to furnish or exhibit any false, fictitious, or misrepresented identification, intended or likely to deceive such importer, manufacturer, dealer, or collector with respect to any fact material to the lawfulness of the sale or other disposition of such firearm or ammunition under the provisions of this chapter;
...
(g) It shall be unlawful for any person—
...
(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));

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.
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That's the law. It does not say anything about being found guilty. If you are 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), you are legally a prohibited person. If you lie about it when you fill out the 4473, that is obviously concealing a material fact.

Remember, there is a difference between being found guilty and being guilty. To use my example of the bank robber, if he is caught and tried but manages to be acquitted at trial, it doesn't mean he didn't commit the crime, it only means the state couldn't prove it beyond a reasonable doubt. He is still guilty -- in fact -- of having robbed a bank, but a jury didn't "find" him guilty. Remember, when a jury doesn't convict, they don't say, "We find the defendant to be innocent." They say "We find the defendant not guilty." That doesn't wipe out the crime or make him innocent, it only means the state couldn't prove his guilt beyond a reasonable doubt.

Note that it's not limited to illegal use. If you take opioid-based pain killing medications and become addicted to them, even if you are getting them by prescription technically you are a prohibited person under the law.
 
It absolutely talks of guilt when it says unlawful . If there is no proof or admission of guilt how are you “legally” guilty of the unlawful act . Again we are talking legally here . I don’t necessarily disagree with your point only the legal aspects of it .

Ok lets use your bank robber example . If they are acquitted of that felony , are they a prohibited person because they are a bank robber ?

If OJ is asked in a court of law under oath if he killed Nicole brown Simpson and answers no did he perjure himself ?

The addicted question is interesting since 99.99999% of addicts don’t think they are addicted. So if you are not found guilty of anything and believe you ARE NOT addicted to legally Prescribed drugs . Can you answer no on the 4473 even thought any reasonable person would believe you are ?
 
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I am having a very difficult time convincing myself that you aren't trolling here. This just isn't that difficult.

Metal god said:
It absolutely talks of guilt when it says unlawful .
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No, it doesn't. "Unlawful" means against the law. A person IS guilty of a criminal act at the moment when they commit the criminal act -- regardless of whether or not they are subsequently caught, tried, and convicted. In the context of the illegal drugs, there's a federal law that spells out what constitute controlled substances, and there is a federal law that says the use of marijuana is illegal. If someone uses marijuana, they are breaking the law. That's "unlawful" use.

Metal god said:
Ok lets use your bank robber example . If they are acquitted of that felony , are they a prohibited person because they are a bank robber ?
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No, because that part of the law specifically says "convicted." The part of the law that addresses the use of illegal substances (see above) doesn't say anything about being convicted.

If OJ is asked in a court of law under oath if he killed Nicole brown Simpson and answers no did he perjure himself ?
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I don't know, because I don't know if he killed Nicole. If he did and he answers "No," then of course he is committing perjury.
 
I’m not trolling , I believe in my argument. How do you know they robbed a bank if they don’t admit it . You keep saying if you did it , you are that thing . If I say no I’m not , now it’s my word against yours or the person filling out the 4473 and the state . There must be a finding of fact before one can be found guilty of Lying on the form .
 
My first wife once asked me how to spell a word. I knew how to spell it, so I told her. She disagreed, so I handed her a dictionary. Her response was, "Well, you think you're so smart! I'm entitled to my own opinion."

Some things are matters of opinion; other things are matters of fact. Facts are facts, and someone's opinion to the contrary doesn't cancel out or negate facts. If you are an unlawful user of controlled substances or marijuana, then you ARE an unlawful user of controlled substances or marijuana -- and that's fact. If you lie about it on the 4473, that's a lie. Maybe you won't be caught in the lie, so you'll get away with it. But, down the road, something might happen that would cause you to be found out, and that false statement could then come back to bite you in the posterior.

Must there be a finding of fact before one can be found guilty of lying on a 4473? Yes, of course -- because it's a crime, and if accused you are entitled to defend yourself against the charge. The government has to prove that you lied. But you ARE guilty of falsifying the form the moment you check the "No" box and sign the form. Whether or not the government can prove that you lied is a different question.
 
This may seem almost silly, but the language of 4473 leads me to ask a question I never thought of before. I am addicted to caffeine, a known stimulant. Don't the underlined parts say that I am prohibited? The only way around that would be if the phrase "or any other controlled substance" implies that "stimulant" only refers to stimulants on a controlled substance list. Is the language of 4473 sufficiently clear in implying that only stimulants on a controlled substance list are relevant?

"Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?"
 
The government has to prove that you lied. But you ARE guilty of falsifying the form the moment you check the "No" box and sign the form. Whether or not the government can prove that you lied is a different question.
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And this is where the worms get tied into knots.....;)

Because we're having to look at both fact, AND opinion, and decide which, if either is applicable, where, and when...

We could really go off into the weeds on this, if we include how these principles are being applied to other subjects, but this isn't the place for that.

Getting back to the 4473 and the 5th Amendment, isn't this the relevant part of the Amendment?

; nor shall be compelled in any criminal case to be a witness against himself,
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SO, first, since no one is "compelled" to fill out a 4473 form, I don't think the 5th applies...
Second, since the filling out the 4473 form is not any part of a "criminal case" I don't think the 5th applies....

Which is where I think the court ruling about a felon not being required to register his illegally possessed firearm makes LEGAL sense.
 
Metal god said:
....I believe in my argument....
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So what?

Your belief in your argument doesn't make your argument valid, useful, or meaningful. An argument on a matter of law is valid, useful, or meaningful only to the extent there is a likelihood that a court will adopt and act on it.

Unless you can support your argument with applicable case law, it's useless. And there is contradictory case law. In U.S. v. Burchard, 580 F.3d 341 (6th Cir., 2009) the Sixth Circuit found that (at 355):
...the regular use of a controlled substance either close in time to or contemporaneous with the period of time he possessed the firearm...
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would support conviction under 18 USC 922(g)(3).

Metal god said:
...if you were found not guilty of doing drugs ..
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Further evidence that you don't understand the law. An acquittal on a drug charge doesn't establish as a matter of fact that you're not a drug user. It only means that the prosecution did not meet its "beyond a reasonable doubt" burden of proof.

You really need to stop posting incorrect and otherwise useless claims about legal issues before someone is foolish enough to pay attention to you and gets into trouble as a result.
 
cjwils said:
This may seem almost silly, but the language of 4473 leads me to ask a question I never thought of before. I am addicted to caffeine, a known stimulant. Don't the underlined parts say that I am prohibited? The only way around that would be if the phrase "or any other controlled substance" implies that "stimulant" only refers to stimulants on a controlled substance list. Is the language of 4473 sufficiently clear in implying that only stimulants on a controlled substance list are relevant?
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The question on the 4473 is there for the purpose of determining whether or not the transferee is allowed to receive a firearm or if he/she is prohibited by the pertinent federal law. That would be 18 US Code 922(g)(3). And 19 USC 922(g)(3) refers to controlled substances "as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802." Therefore, if caffeine isn't listed in 21 USC 802, I think you're good to go.

However, I am not a lawyer. Frank is a lawyer.
 
Frank could you please answer my questions rather telling me to stop posting .

If a person is found not guilty of drug possession or use in a court of law or any other official manner and that is the only offense they have ever been charged with . Are they a prohibited person ?

If bank robber suspect is acquitted of the robbery and has no other offense’s on there record . Are they a prohibited person ?

These are yes or no answers , please don’t add a bunch of if , and’s or buts . These are straight forward questions. You have all the info available . One charge each with acquittals on both .

Edit -

I’ve been thinking about this and believe I came up with the answer to my questions . That is they would be prohibited persons assuming they actually did the crime . Reason being is they were acquitted of said crime therefore double Jeopardy applies . This results in them being able to answer the question honestly without incrimination . Resulting in the denial of the purchase of the firearm
 
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