"Legal" Marijuana and Guns

[Frank Ettin]

How has the government of Colorado misled anyone? Again, the information is out there and the law is very clear. No one speaking for the government of Colorado has said anything different.

By their actions and their words they are misleading the public into believing Pot is legal. The fact that they do not arrest growers,seller and users and the fact that they Tax the production and sales of Pot misleads the public into believing it is legal....

No, that is not misleading the public because under Colorado law marijuana is legal. It's just not legal under federal law.

People might well be drawing the wrong conclusions from the perfectly appropriate actions of Colorado authorities.

...Run a poll, in Colorado or across the entire country and ask how many people think pot is Legal in Colorado.

Betcha get better than 90% say it is...

So what? In any case, you're just guessing.

...i'm just an average Joe that makes up Juries all across this country every day and that is where my Worthless Uneducated Opinion counts the most...

Not really. Part of what goes on in a trial is that the jury gets educated. And part of the jury selection process involves both the prosecuting lawyer and defending lawyer excusing a certain number of prospective jurors who will be less receptive to their respective argument and more receptive to the opposition's. That's part of assuring the impartial jury the Constitution guarantees.

That doesn't mean that the occasional jury might not let the ignorant defendant (with the heart of gold) off. But it does mean that one would be foolish to count on it.

First off I wonder how many peope have been prosecuted for lying on a 4473...

Well a quick search of a legal data base to which I subscribe showed over 50 federal court of appeal decisions in appeals from convictions for lying on a 4473. Those are just appeals. There may have been other prosecutions which didn't wind up in the appellate courts, including convictions at trial that weren't appealed and prosecutions resolved by a plea deal.

I didn't bother to identify those involving lying about drug use, but clearly the federal government does prosecute violations of 18 USC 922(a)(6).

But the federal government also prosecutes "unlawful user with a gun" cases. See post 25:

...I just did a search of a legal data base to which I subscribe. Looking only at cases within the last ten years I found 11 appeals in federal court from convictions for being an unlawful user of a controlled substance in possession of a gun (with 18 within the last 15 years). Those of course were just appeals and would not include cases disposed of without the matter going to the appellate court...

...Finally, I would wonder as to what constitutes a "user of". Somebody who tried it once in high school? Somebody who quit 10 years ago? Somebody who quit yesterday?...

A court will start with the definition in the ATF regulations (27 CFR 478.11):

Unlawful user of or addicted to 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....

And 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...

would support conviction under 18 USC 922(g)(3).

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 prohibit 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.
   
   
5. If anyone wants to bet up to five years of his life in federal prison (plus a lifetime loss of gun rights) on some fanciful notion of how he could get off or his hope that he won't get prosecuted, be my guest.

...I also doubt you'll see the feds challenge or prosecute what states have legalized, though it would be an interesting constitutional case concerning what rights are delegated to the states.

Nope, that's another horse that has left the barn. The question was decided by SCOTUS in favor of federal regulation in Gonzales v. Raich, 545 U.S. 1 (2005).

In any case, the feds haven't been giving marijuana a complete pass; for example 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"
  

 

[JohnKSa]

By their actions and their words they are misleading the public into believing Pot is legal. The fact that they do not arrest growers,seller and users and the fact that they Tax the production and sales of Pot misleads the public into believing it is legal.

There is absolutely no requirement that everything that is illegal under federal law must also be illegal under state law.

There is also no requirement that a state must educate its residents as to the difference between federal and state law, nor as to how federal jurisdiction applies at the state level.

Furthermore, there is nothing misleading about the fact that state law does not mirror federal law. Although there can be overlap, it is often the case that state and federal law differ significantly.

I gave the example earlier in the thread about the difference between the Texas legal definition of a machine gun and the Federal legal definition of a machine gun. The fact that the TX definition does not mirror the Federal definition may be confusing to some, but there is no rational basis for saying that TX is trying to mislead the public by having a different definition. It just means that they have a different definition.

One might as well argue that because a city does not have an ordinance against murder that they are trying to mislead the public into believing that murder is legal.

 

[publius42]

Frank Ettin (post 10) and Tom Servo (post 43) have both said that rescheduling marijuana would require federal legislation.

Several sources say that the executive branch can also reschedule drugs.

http://www.csmonitor.com/USA/Politi...tion-on-pot-Legalize-it-for-everyone/(page)/2

"In theory, the DEA, in consultation with the secretary of health and human services could move to reschedule marijuana – legally, the administration has that power," says Robert Mikos, a law professor and federalism expert at Vanderbilt University, in Nashville.

That doesn't sound politically possible, but is it legally true?

 

[Frank Ettin]

Frank Ettin (post 10) and Tom Servo (post 43) have both said that rescheduling marijuana would require federal legislation.

Several sources say that the executive branch can also reschedule drugs.
...

That's true. The Controlled Substances Act assigns drugs to various "schedules" (21 USC 812):

(a) Establishment

There are established five schedules of controlled substances, to be known as schedules I, II, III, IV, and V. Such schedules shall initially consist of the substances listed in this section. The schedules established by this section shall be updated and republished on a semiannual basis during the two-year period beginning one year after October 27, 1970, and shall be updated and republished on an annual basis thereafter.

(b) Placement on schedules; findings required

Except where control is required by United States obligations under an international treaty, convention, or protocol, in effect on October 27, 1970, and except in the case of an immediate precursor, a drug or other substance may not be placed in any schedule unless the findings required for such schedule are made with respect to such drug or other substance. The findings required for each of the schedules are as follows:

(1) Schedule I.—

(A) The drug or other substance has a high potential for abuse.

(B) The drug or other substance has no currently accepted medical use in treatment in the United States.

(C) There is a lack of accepted safety for use of the drug or other substance under medical supervision.​

(2) Schedule II.—

(A) The drug or other substance has a high potential for abuse.

(B) The drug or other substance has a currently accepted medical use in
treatment in the United States or a currently accepted medical use with severe restrictions.

(C) Abuse of the drug or other substances may lead to severe psychological or physical dependence.​

(3) Schedule III.—

(A) The drug or other substance has a potential for abuse less than the drugs or other substances in schedules I and II.

(B) The drug or other substance has a currently accepted medical use in treatment in the United States.

(C) Abuse of the drug or other substance may lead to moderate or low physical dependence or high psychological dependence.​

(4) Schedule IV.—

(A) The drug or other substance has a low potential for abuse relative to the drugs or other substances in schedule III.

(B) The drug or other substance has a currently accepted medical use in treatment in the United States.

(C) Abuse of the drug or other substance may lead to limited physical dependence or psychological dependence relative to the drugs or other substances in schedule III.​

(5) Schedule V.—

(A) The drug or other substance has a low potential for abuse relative to the drugs or other substances in schedule IV.

(B) The drug or other substance has a currently accepted medical use in treatment in the United States.

(C) Abuse of the drug or other substance may lead to limited physical dependence or psychological dependence relative to the drugs or other substances in schedule IV.

....​

Under the Controlled Substances Act, the Attorney General may add a drug to, or remove a drug, from a Schedule or change a drug's scheduling. A detailed, complicated and formal procedure must be followed (21 USC 811):

(a) Rules and regulations of Attorney General; hearing

The Attorney General shall apply the provisions of this subchapter to the controlled substances listed in the schedules established by section 812 of this title and to any other drug or other substance added to such schedules under this subchapter. Except as provided in subsections (d) and (e) of this section, the Attorney General may by rule—

(1) add to such a schedule or transfer between such schedules any drug or other substance if he—

(A) finds that such drug or other substance has a potential for abuse, and

(B) makes with respect to such drug or other substance the findings prescribed by subsection (b) of section 812 of this title for the schedule in which such drug is to be placed; or​

(2) remove any drug or other substance from the schedules if he finds that the drug or other substance does not meet the requirements for inclusion in any schedule.​

Rules of the Attorney General under this subsection shall be made on the record after opportunity for a hearing pursuant to the rulemaking procedures prescribed by subchapter II of chapter 5 of title 5. Proceedings for the issuance, amendment, or repeal of such rules may be initiated by the Attorney General

(1) on his own motion,

(2) at the request of the Secretary, or

(3) on the petition of any interested party.​

(b) Evaluation of drugs and other substances

The Attorney General shall, before initiating proceedings under subsection (a) of this section to control a drug or other substance or to remove a drug or other substance entirely from the schedules, and after gathering the necessary data, request from the Secretary a scientific and medical evaluation, and his recommendations, as to whether such drug or other substance should be so controlled or removed as a controlled substance. In making such evaluation and recommendations,....

(c) Factors determinative of control or removal from schedules

In making any finding under subsection (a) of this section or under subsection (b) ofsection 812 of this title, the Attorney General shall consider the following factors with respect to each drug or other substance proposed to be controlled or removed from the schedules:

(1) Its actual or relative potential for abuse.

(2) Scientific evidence of its pharmacological effect, if known.

(3) The state of current scientific knowledge regarding the drug or other substance.

(4) Its history and current pattern of abuse.

(5) The scope, duration, and significance of abuse.

(6) What, if any, risk there is to the public health.

(7) Its psychic or physiological dependence liability.

(8) Whether the substance is an immediate precursor of a substance already controlled under this subchapter.
​

(d) International treaties, conventions, and protocols requiring control; procedures respecting changes in drug schedules of Convention on Psychotropic Substances

(1) If control is required by United States obligations under international treaties, conventions, or protocols in effect on October 27, 1970, the Attorney General shall issue an order controlling such drug under the schedule he deems most appropriate to carry out such obligations, without regard to the findings required by subsection (a) of this section or section 812 (b) of this title and without regard to the procedures prescribed by subsections (a) and (b) of this section.....​

Whether the result of this process as currently set out in the controlling statutes would result in a reclassification of marijuana which might resolve the particular conundrum being discussed in this thread is unknown.

 

[steve4102]

In an ATF Open letter to all FFL, http://www.atf.gov/files/press/rele...all-ffls-marijuana-for-medicinal-purposes.pdf . the ATF clearly states that anyone using Medical Marijuana Must Answer Yes to question 11e. They also State that a Medical user cannot purchase or possess a Firearm or Ammunition.

That's what the ATF says, the Us Supreme Court Says otherwise. According to this article the US Supreme Court has refused to hear Jackson County Sheriff Mike Winter's legal challenge that asserted U.S. law trumps Oregon law.

According to the Article, Winter's denied Cynthia Willis a Carry Permit on the grounds that she was a user of Medical Marijuana.

Winters has lost every court case so far — in Jackson County Circuit Court, the Oregon Court of Appeals and the Oregon Supreme Court.

Winters appealed to the U.S. Supreme Court in July, The US Supreme Court refused to hear his case letting the Lower Court Rulings Stand.

That ruling is that the ATF is Wrong and users of Medical Marijuana are not bared from owning Firearms, Ammunition and even carry permits.

http://www.mailtribune.com/apps/pbcs.dll/article?AID=/20120111/NEWS/201110317

 

[Tom Servo]

That's what the ATF says, the Us Supreme Court Says otherwise

That's incorrect. The Supreme Court hasn't said anything about the Winters case. In fact, they seem to agree with him.

That ruling is that the ATF is Wrong and users of Medical Marijuana are not bared from owning Firearms, Ammunition and even carry permits.

This is simply incorrect and possibly dangerous advice to give.

 

[steve4102]

So, what is correct? By the Supreme Court refusing to hear Sheriff Winter's case, the Lower Court ruling Stands and Ms Willis gets her Gun and Her Permit even though she is an Admitted user of Medical Marijuana.

 

[Frank Ettin]

...That's what the ATF says, the Us Supreme Court Says otherwise. According to this article the US Supreme Court has refused to hear Jackson County Sheriff Mike Winter's legal challenge that asserted U.S. law trumps Oregon law.

According to the Article, Winter's denied Cynthia Willis a Carry Permit on the grounds that she was a user of Medical Marijuana.

Winters has lost every court case so far — in Jackson County Circuit Court, the Oregon Court of Appeals and the Oregon Supreme Court....

Have you read the decision of the Oregon Supreme Court? You apparently haven't, because you clearly don't understand what the Oregon Supreme Court said.

So what did the Oregon Supreme Court actually say?

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 Court concluded that Ms. Willis had satisfied the statutory requirements under Oregon's "shall issue" conceal handgun license (CHL) law, notwithstanding that the use of marijuana violated federal law. So the Oregon sheriff was obliged under the applicable Oregon statute to issue a CHL to Ms. Willis.

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...

And thus the Oregon Supreme Court specifically acknowledged that while Ms. Willis would not be arrested by Oregon LEOs or prosecuted under Oregon law for carrying a concealed handgun, she could 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).

Oh, and by the way, I laid that out in this very thread back in post 56, so you haven't even been bothering to follow this discussion.

...That ruling is that the ATF is Wrong and users of Medical Marijuana are not bared from owning Firearms, Ammunition and even carry permits...

So no, the ruling of the Oregon Supreme Court was not that ATF was wrong. The ruling of the Oregon Supreme Court was that Oregon law did not prevent Willis from getting her permit.

But the Oregon Supreme Court did note that (at 1066) that its ruling:

...does not in any way preclude full enforcement of the federal law by federal law enforcement officials.......

...By the Supreme Court refusing to hear Sheriff Winter's case, the Lower Court ruling Stands...

No.

1. The Oregon Supreme Court is not a "lower court" in this context. It is a court in a different system -- the State of Oregon court system.
   
   
2. And while the ruling of the Oregon Supreme Court stands, that ruling was made on exclusively state law grounds.
   
   
3. Nothing in the ruling of the Oregon Supreme Court impairs, impedes or interferes with enforcement by the federal government of federal law.

 

[Aguila Blanca]

Tom, thank you for that link. The Wikipedia article finally explains where the hole is in the government's logic. I still don't accept the notion that by growing and using something yourself it is deemed to be "interstate commerce" because it has the effect of affecting interstate commerce. But this goes beyond that:

The government's case

The Controlled Substances Act does not recognize the medical use of marijuana. Agents from the federal Drug Enforcement Administration (DEA) were assigned to break up California's medical marijuana co-ops and seize their assets. This activity was the result of the belief that federal law preempted that of California. The government argued that if a single exception were made to the Controlled Substances Act, it would become unenforceable in practice. The government also contended that consuming one's locally grown marijuana for medical purposes affects the interstate market of marijuana, and hence that the federal government may regulate—and prohibit—such consumption. This argument stems from the landmark New Deal case Wickard v. Filburn, which held that the government may regulate personal cultivation and consumption of crops, due to the aggregate effect of individual consumption on the government's legitimate statutory framework governing the interstate wheat market.

It seems to me (the non-lawyer) that there's a huge difference between wheat and marijuana. Wheat is legal to grow and to sell and to buy, intrastate and interstate. So, by a Byzantine stretch of credible logic, the Feds can argue that NOT engaging in interstate commerce "affects" interstate commerce. (The Founders must have rolled over in their graves when that ruling was issued.) But under federal law, marijuana is NOT legal to grow, to sell, or to buy. Ergo, under federal law there IS no "interstate commerce" in marijuana, and thus there can be nothing to regulate, and nothing for a local grower/consumer to affect.

I am not volunteering to be the test case ...

 

[steve4102]

Have you read the decision of the Oregon Supreme Court? You apparently haven't, because you clearly don't understand what the Oregon Supreme Court said.

No Frank I did NOT,and I never said I did.

You apparently did NOT read my post, because if you Had you would have read this... "According to the Article".

From the "Article".
Concealed handgun owners with medical marijuana cards will be allowed to keep their licenses following the U.S. Supreme Court's decision not to hear Jackson County Sheriff Mike Winter's legal challenge that asserted U.S. law trumps Oregon law.

So, as I posted before, According to The "Article", the ATF cannot deny a user of Medical Marijuana a firearm or ammunition.

Take it up with the author, if you wish.

 

[Frank Ettin]

...So, as I posted before, According to The "Article", the ATF cannot deny a user of Medical Marijuana a firearm or ammunition...

If that's what you got from the article, you should have understood that the article was wrong -- at least if you had read post 56 in this thread.

And if you had understood that the article was wrong, why were you bringing us misinformation?

 

[steve4102]

If that's what you got from the article, you should have understood that the article was wrong -- at least if you had read post 56 in this thread.

And if you had understood that the article was wrong, why were you bringing us misinformation?

I did not "know" that the Article was wrong. Yes, I missed post 56.
I came here for experts like yourself yo clarify and to comment. Sorry! I'll know better next time.
A simple read post #56 would have been sufficient to set me straight doncha think?

Have a nice day!

 

[Frank Ettin]

...

If that's what you got from the article, you should have understood that the article was wrong -- at least if you had read post 56 in this thread.

And if you had understood that the article was wrong, why were you bringing us misinformation?

I did not "know" that the Article was wrong. I came here for experts like yourself yo clarify and to comment. Sorry! I'll know better next time. ...

Sorry your feathers got ruffled, Steve. But from the way you put things in posts 85 and 87, it really looked more like you were telling us, rather than asking us.

 

[Tom Servo]

So, by a Byzantine stretch of credible logic, the Feds can argue that NOT engaging in interstate commerce "affects" interstate commerce.

The whole doctrine is well and truly screwed up, but that's where it stands. The same principle is applied to most federal modern gun regulations, which usually have a blurb about how guns "affect interstate commerce."

Until that doctrine is reversed, states can't "legalize" marijuana any more than they can authorize their citizens to act in defiance of federal firearms laws.

I came here for experts like yourself yo clarify and to comment. Sorry! I'll know better next time.

It was pretty imperative. Your post, if taken on its own, implied that it was legal to possess marijuana and firearms. Had someone taken it as gospel, they could have gotten into serious trouble.

That's why we've got to be really careful on stuff like this.

 

[Aguila Blanca]

I missed this before:

There is absolutely no requirement that everything that is illegal under federal law must also be illegal under state law.

There is also no requirement that a state must educate its residents as to the difference between federal and state law, nor as to how federal jurisdiction applies at the state level.

It may not have been required by a statute, but when I went through junior high (shortly after the signing of the Magna Carta) that was taught to us in either 7th grade or 8th grade Social Studies (I guess most schools today call that "Civics"). Perhaps because I've known it for so long, I find it rather incredible (in the literal sense of the word) that some people don't know that there's a difference between state and federal laws.

 

[steve4102]

I got into a discussion about Medical Marijuana and Firearms possession and was bombarded with claims of Un-constitutional etc.etc. Here is just one of the comments I received pertaining to Medical Marijuana and "Prohibited Persons".

Do any of his comments have merit or is his bucket without a bottom?

The fact remains that any declaration that someone is a "prohibited person" without that individual having the opportunity to argue his case before a judge is unconstitutional. It is a violation of the due process clauses of the 5th and 14 amendments. Also the requirement that a person answer the questions on form 4473 section 11 is potentially a violation of the 5th amendment protection against self incrimination. Prior to the Heller ruling there was a question as to whether the right of an individual to keep and bear arms was protected by the 2nd amendment. Post Heller, we know that the individual right to keep and bear arms is protected, and as such any legislative restrictions on that right that do not involve due process of law are unconstitutional.

You'll also note that 18 U.S.C. 922 (d) applies to the transferor of a firearm, not the transferee. Even if this statute were lawful, it does not prohibit a pothead from owning a firearm, it prohibits a person from knowingly transferring a firearm to a pothead. Specifically, it is a restriction on the selling FFL, not on the potential owner. If I were a pothead (which I am not) and was refused the sale of a firearm by an FFL due to my refusal to answer the questions in section 11 of form 4473, I could simply buy a firearm from a private individual, and keep my mouth shut during the transaction that I was a pothead. Going this route, no federal law has been broken regarding the transfer or ownership of the firearm. FFL's have have "opted in" to regulations that do not apply to private citizens (form 4473, etc). The letter you posted from the BATFE was to FFL's, not individual persons.

Currently MN 624.713 Subd 1.(10)(iii) does prohibit a person who is an unlawful user of any controlled substance from owning a pistol or "semi-automatic assault rifle". This is also unconstitutional as again there has been no due process of law on the restriction of the right. However, in your hypothetical scenario where MN decriminalizes the medical use of marihuana, a person with a prescription would no longer be an unlawful user under state law. A pothead would be able to purchase a pistol from a non-FFL without any state or federal firearms laws being broken, provided he didn't notify the seller he was a pothead. This, despite the fact that both state and federal law are in violation of multiple protections in the bill of rights.

I have no standing (nor the funding necessary) to challenge the notion of "prohibited persons" because I don't fall into any of the prohibited person categories. There is no reason for me to not fill out section 11 of form 4473, as I am not incriminating myself in any way by doing so. At some point in the future, depending on the outcome of the next election or two, and the makeup of the courts, I would expect a challenge to the constitutionality of denying a person sale or ownership of a firearm without due process of law. Hopefully the courts will rule appropriately and honor the protections guaranteed the people in the bill of rights.

I am not a lawyer and don't advocate anyone break the law. If a pothead or other "prohibited person" wishes to own a firearm without breaking the law (other than being a pothead in the first place), I suggest you contact a lawyer. What I specifically am advocating is that we all understand the law, and recognize that both state and federal firearms laws are in violation of our constitutional protections.

 

[Tom Servo]

The fact remains that any declaration that someone is a "prohibited person" without that individual having the opportunity to argue his case before a judge is unconstitutional. It is a violation of the due process clauses of the 5th and 14 amendments.

It may be unconstitutional, but I'm not aware of any court saying such.

You'll also note that 18 U.S.C. 922 (d) applies to the transferor of a firearm, not the transferee. Even if this statute were lawful, it does not prohibit a pothead from owning a firearm, it prohibits a person from knowingly transferring a firearm to a pothead.

Uh, no. § 922 (g)(3) clearly prohibits possession by unlawful users.

I wrote about this on another forum, and I got the Firehose of Righteous Indignation for it. It may not be right (I don't think it is), but the law is clear. I'm sorry this isn't what many people want to hear, but there's no magical loophole, and the various state laws don't change the federal situation.

The problem is, guys like the one you're debating could very well get someone thrown in jail with bad advice. We'll probably see a test case very soon when someone makes the mistake of trying to board a plane or cross state lines with "legal" marijuana.

 

[Frank Ettin]

Do any of his comments have merit ....?

No.

...The fact remains that any declaration that someone is a "prohibited person" without that individual having the opportunity to argue his case before a judge is unconstitutional. It is a violation of the due process clauses of the 5th and 14 amendments....

That is simply not true. If X tells me he is a user of marijuana, I'm perfectly free to call him a prohibited person and explain to him that federal prohibits him from possessing a firearm or ammunition.

Now if the U. S. Attorney want to throw that person in jail for being a prohibited person in possession of a firearm, then the U. S. Attorney must get an indictment and afford him due process.

...You'll also note that 18 U.S.C. 922 (d) applies to the transferor of a firearm, not the transferee. Even if this statute were lawful, it does not prohibit a pothead from owning a firearm, it prohibits a person from knowingly transferring a firearm to a pothead....

Yes, 18 USC 922(d) prohibits someone from transferring a gun or ammunition to anyone he knows or has reasonable cause to believe is a prohibited person. So 922(d) does not prohibit a user of marijuana from possession a firearm or ammunition.

BUT 18 USC 922(g)(3) prohibits anyone who is an unlawful user of a controlled substance from possessing a gun or ammunition.

...If I were a pothead (which I am not) and was refused the sale of a firearm by an FFL due to my refusal to answer the questions in section 11 of form 4473, I could simply buy a firearm from a private individual, and keep my mouth shut during the transaction that I was a pothead. Going this route, no federal law has been broken regarding the transfer or ownership of the firearm...

Wrong. The buyer, by hypothesis a user of marijuana, violated 18 USC 922(g)(3) by being an unlawful user of a controlled substance in possession of a gun or ammunition.

...Currently MN 624.713 Subd 1.(10)(iii) does prohibit a person who is an unlawful user of any controlled substance from owning a pistol or "semi-automatic assault rifle". This is also unconstitutional as again there has been no due process of law on the restriction of the right...

State law is irrelevant as discussed previously. And due process becomes an issue only when charged with the crime and subject to potential criminal liability.

...A pothead would be able to purchase a pistol from a non-FFL without any state or federal firearms laws being broken, provided he didn't notify the seller he was a pothead...

Wrong, as discussed above. The buyer violates 18 USC 922(g)(3).

...both state and federal law are in violation of multiple protections in the bill of rights....

Not until SCOTUS agrees.

...I am not a lawyer...

That's obvious. I, however, am a lawyer. I've done this sort of thing for real stakes, the lives and property of my clients, in the real world under the scrutiny of judges, regulators and adverse lawyers.

...What I specifically am advocating is that we all understand the law,...

Understanding the law is a good thing. It would be nice if this person, and you, understood the law.

...recognize that both state and federal firearms laws are in violation of our constitutional protections...

Perhaps in his opinion and/or your opinion. But neither your opinion nor his opinion counts. What counts is the opinion of the courts.

 

[Rat Robb]

Why don't you ask someone who lives in Alaska?

From my understanding, around 50% of Alaskans smoke in some capacity and 90% of own firearms. You don't have to be a rocket science to know that the 2 circles overlap.

Also, do you think people haven't been doing both forever, whether the substance is legal or not, lol.

Sometimes the ignorance on this subject is comical. Everyone is freaking out over nothing at all.

-Robb

ps Im more afraid of people on Xanax and Zoloft with guns than Cheech and Chong

 

[Frank Ettin]

...From my understanding, around 50% of Alaskans smoke in some capacity and 90% of own firearms. You don't have to be a rocket science to know that the 2 circles overlap...

I'm not prepared to accept your understanding. How about providing some solid evidence.

...Also, do you think people haven't been doing both forever, whether the substance is legal or not, lol....

Nonetheless, the law is as I've described it.

...Sometimes the ignorance on this subject is comical...

I can only surmise that you're speaking of your own ignorance. And I don't find it in the least comical.