"Legal" Marijuana and Guns

T

Tom Servo

Staff
Colorado has made it legal to buy, own, and possess marijuana for recreational purposes. Before anybody rushes to spark up the bong and crank up their Dave Matthews records, read on.

Under 18 U.S.C. § 922(g),

It shall be unlawful for any person (...) 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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In short, smoking pot disqualifies one from owning firearms under federal law. The ATF weighed in on this a couple of years back [pdf], and there have been prosecutions.

Colorado can pass all the laws they want. As per just about every recent court's reading of the Commerce Clause, federal law trumps state law when there's a conflict along these lines.

There is some overlap between gun owners and proponents of marijuana legalization. The latter can get themselves in real trouble if law enforcement decides to look into their lives, so get the word out.
 
In addition to the problem of possession of a firearm by a prohibited (pot using) person,(which,if I am not mistaken,is felony )
When you fill out a form 4473,the federal firearms purchase form,you swear before a witness on a Federal affidavit"I am not an unlawful user of or addicted to marijuana or any other controlled substance"

It is a second felony to lie on that affidavit.

Now,since Obamacare federalizes your med records,do you suppose the feds could at some point cross reference medpot cards and 4473's?
Think about all this NSA data gathering.

By accident or design,this Federal grey area,pot is still federally unlawful,and connected to firearm law,is a 2nd amendment trap.

A lot of younger folks who were totally disinterested in politics turned out to vote in Colorado in order to legalize pot.I will leave it to your imagination to figure out who else they voted for.

Our President and Attorney General may not care about pot,but they do not like your guns or your RTKBA.Ends justify means.

A large percentage of young folks will go for getting high.Many are proud to be part of the history of being there,part of it,yeah,man,we got it done!!

So,we are kool like hippies and Woodstock and stuff,yeah!Dylan,dude!Got Cheetos?

As they throw away one of the Civil Rights protected by the Constitution of the United States.

And as this goes on,this trap,hundreds of thousands,maybe millions,as other states legalize(Washington) will toke up.Show ID,maybe pay with Visa,document themselves with the NSA.

When the trap is sprung,and it is ruled none of these folks pass NICS and maybe they have to give up their guns

How will these folks support the 2nd Ammendment they no longer have?

"Well dude,if I can't have a gun,like you shouldn't have one,because its not fair...we all have to be equal...man...I can't find my lighter...hey,you got a lighter?

Yeah,that ain't right,man.Aww,dude,are those Cheetos?

Oh,one more thing,a lot of Federal land in Colorado...The guy in the pickup with the government plates will enforce pot and gun laws...you are in the National Forest or Pawnee National Grasslands or Bureau of Land Management lands...

Hunting or plinking with 22's or just a gun along and Mr Ranger checks you out,and he either has a nose or a dog...

Gee,Yogi,I don't think Mr Ranger is going to like this...dude,ask him if he like Cheetos...Oh,wrong,dude,you ate them all...

THE POINT

Make good choices,take care of yourself.It is your RTKBA.

Another point to ponder....1)Pot and driving is going to be like alchohol and driving2)I have read in 2014 a new DUI law goes into effect in Colorado.If you are pulled over suspected of DUI,currently you can decline BAC testing but,under Implied Consent,you will suffer the penalties of DUI.In 2014,they will be able to get a warrant and take your blood.I assume,if they can take blood,they can take hair.Either will prove you use pot.And,just for fun,they have a DNA sample you donated.Given THC in the blood,recall possessing ammo is prohibited,a 22 casing in your car might be probable cause to get a warrant to search your home for firearms.

This is the direction we are headed,folks.

So,how IS that hopey changy stuff working out?(Yes,George and the Patriot Act etc...both sides of the aisle,bi-partisan problem)
 
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he would be an "unlawful" user in the eyes of the federal government since pot is an illegal substance and the 4473 is a federal form. the state has nothing to do with it
 
a resident of a state that does not outlaw marijuana use would not be an "unlawful user".
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Federal law supercedes state law. Federal law says it's illegal in the U.S. and therefore it is illegal EVERYWHERE in the U.S.

State law may or may not back up federal law, but it doesn't matter. If federal law says it's illegal then it is illegal--REGARDLESS of what state law says.

For example. TX law says that a machinegun is a firearm that fires MORE than 2 shots for each pull of the trigger. Federal law says that a machinegun is a firearm that fires more than 1 shot for each pull of the trigger. So, as a TX resident, if I make a gun that fires 2 shots for each pull of the trigger, I haven't violated TX law. BUT I have certainly violated federal law and although I am guiltless under TX state law, I am still liable to federal prosecution and conviction.

Don't be confused about this issue and don't let your fellow gun owners remain confused. The fact that a particular state doesn't criminalize the use of marijuana does NOT make the use of marijuana legal in that state. It just means that if you are caught and prosecuted, it will be by the federal authorities, not state law enforcement.
 
so sad.

I'm not condoning smoking weed. I'm saddened by the over reaching authority and stretching of powers the federal government has given itself by virtue of an apathetic electorate.
 
Let's avoid broader discussions of drug policy, as they're outside the scope of this forum.

It's unclear whether the current administration will take action on the conflict between state and federal law on the possession and usage of marijuana, but the possibility of prosecution is still there. The ATF has made it clear that it remains a crime to possess a firearm if one uses it.

A couple of years ago, several states passed "firearms freedom" laws that conflicted with federal law. We still haven't seen any fallout from those, and the issue seems to have fizzled out.
 
With the legalization of recreational pot use, the only requirement for an ID is a state (any) issued ID card. Therefore there is no way to cross reference the buyer against any data base.
 
JD0x0 said:
Why don't they have the same laws for alcohol and prescription drugs?...
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Well we don't. So what? It is what it is.

JERRYS. said:
a resident of a state that does not outlaw marijuana use would not be an "unlawful user".
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He would be an unlawful user under federal law.

thickice said:
With the legalization of recreational pot use, the only requirement for an ID is a state (any) issued ID card. Therefore there is no way to cross reference the buyer against any data base.
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That doesn't change federal law. Note that here we do not encourage or suggest violating the law. And there are all kinds of ways in which folks who violate the law can wind up getting caught.

Here's the bottom line:

  1. State law on marijuana 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 prohibited person and commits a federal felony by possessing a gun or ammunition.

  4. 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.

And so, for all of you folks thumping your chests about how wrong this is:

  1. The law at present is that someone who is an unlawful user of a controlled substance (including a user of marijuana, even under a state medical marijuana law) is prohibited under federal law from having possession of a gun.

  2. That could be fixed. Congress could amend 18 USC 922(g) to provide that an unlawful user of a controlled substance would not include someone using marijuana under a state medical marijuana law. Or Congress could amend the Controlled Substances Act to provide for the lawful prescribing of marijuana (just as it does for Oxycontin). Or Congress could fix this in a variety of other ways.

  3. So have you written you Congressional representatives?
 
a resident of a state that does not outlaw marijuana use would not be an "unlawful user".
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In State Court. But if you look in the laws of just about every state, on State forms, etc. you'll see the disclaimer that while a state may allow firearms possession to someone, the Federal government may not, and they're usually very good at pointing out that State permission is not a defense to Federal prosecution.

In fact, looking at my state's laws, Regulatory Code of Washington 9.41 Firearms and Dangerous Weapons

I'll quote the exact phrasing I'm talking about:

(5) At the time of applying for the purchase of a pistol, the purchaser shall sign in triplicate and deliver to the dealer an application containing his or her full name, residential address, date and place of birth, race, and gender; the date and hour of the application; the applicant's driver's license number or state identification card number; a description of the pistol including the make, model, caliber and manufacturer's number if available at the time of applying for the purchase of a pistol. If the manufacturer's number is not available, the application may be processed, but delivery of the pistol to the purchaser may not occur unless the manufacturer's number is recorded on the application by the dealer and transmitted to the chief of police of the municipality or the sheriff of the county in which the purchaser resides; and a statement that the purchaser is eligible to possess a pistol under RCW 9.41.040.

The application shall contain a warning substantially as follows:


CAUTION: Although state and local laws do not differ, federal law and state law on the possession of firearms differ. If you are prohibited by federal law from possessing a firearm, you may be prosecuted in federal court. State permission to purchase a firearm is not a defense to a federal prosecution.
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Bold and Italics Emphasis mine. So Washington having legalized marijuana MAY not feel it's illegal to smoke pot and own a firearm. They MAY still think so, as marijuana is specifically listed on the form(s) by name.

Why don't they have the same laws for alcohol and prescription drugs?...
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Alcohol is a depressant. Depressant is one of the categories in question 11e. I would imagine the primary thing keeping US Attorneys from prosecuting alcoholics for possession/perjury is the political backlash over things not firearms-related like HIPPA principles, and a general impression that people who are a friend of Bill and have been sober for quite some time aren't REALLY still addicted or an unlawful user etc so it would be politically unpopular to prosecute a guy who's been going to meetings for 5 years. So if you're not willing to do that, prosecuting the guy caught drunk and carrying would raise equal protection sleeping dogs they'd prefer to let lie. I suspect anyway.
 
JimDandy said:
...Alcohol is a depressant. Depressant is one of the categories in question 11e. I would imagine the primary thing keeping US Attorneys from prosecuting alcoholics for possession/perjury is the political backlash over things not firearms-related like HIPPA principles,...
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No, what's keeping U. S. Attorneys from prosecuting is what the law is.

The specific condition disqualifying one from possessing firearms is (18 USC 922(g)(3)):
...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));....
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And a controlled substance under the Controlled Substances Act (21 USC 802(6), emphasis added) is:
....a drug or other substance, or immediate precursor, included in schedule I, II, III, IV, or V of part B of this subchapter. The term does not include distilled spirits, wine, malt beverages, or tobacco, as those terms are defined or used in subtitle E of the Internal Revenue Code of 1986.
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So alcohol is not a controlled substance for the purposes of 18 USC 922(g)(3), and therefore alcohol addiction is not a disqualifying condition.
 
Tom Servo said:
...A couple of years ago, several states passed "firearms freedom" laws that conflicted with federal law. We still haven't seen any fallout from those, and the issue seems to have fizzled out.
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I should mention that there is some ongoing litigation involving the Montana law. Most recently the Ninth Circuit ruled that the Montana law was preempted by federal law.

But we're not discussing "firearm freedom" laws.
 
JD0x0 said:
Why don't they have the same laws for alcohol and prescription drugs? All or none IMO.
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But alcohol and prescription drugs are both legal under federal law ... marijuana is not.

You're comparing apples to turnips.
 
No, what's keeping U. S. Attorneys from prosecuting is what the law is.

The specific condition disqualifying one from possessing firearms is (18 USC 922(g)(3)):
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That may very well be, but that isn't what you swear to on a 4473 form. Question 11e reads:

“Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?”
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The question does not appear to accurately reflect the prohibited persons flags.
 
JimDandy said:
No, what's keeping U. S. Attorneys from prosecuting is what the law is.

The specific condition disqualifying one from possessing firearms is (18 USC 922(g)(3)):
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That may very well be, but that isn't what you swear to on a 4473 form. Question 11e reads:

“Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?”
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The question does not appear to accurately reflect the prohibited persons flags.
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The question was no doubt recast to paraphrase the statute in a way intended to be more easily understood by the individual filling out the 4473. If the question merely parroted the statute it would cross reference the Controlled Substances Act. That would be pretty meaningless to the ordinary person.
 
But we're not discussing "firearm freedom" laws.
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I left that one off as a bit of non sequitur. The laws were passed around the idea that states could regulate certain activities irrespective of federal laws. We're seeing something of the same idea here. Of course, given the state's general climate towards the RKBA, I wouldn't see them rushing to defend a test case on these grounds.

Apparently, Colorado recognizes the dissonance. Residents with medical marijuana permits are barred from getting carry permits:

Any person who uses or is addicted to marijuana, regardless of whether his/her state has passed legislation authorizing marijuana use for medicinal purposes, is an unlawful user of or addicted to a controlled substance, and is prohibited by Federal Law from possessing firearms or ammunition.
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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 since the federal government would have to arrest, try and convict me of something that it's entirely legal to do in Colorado, I'd say the odds are very much in my favor.
 
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