Pot Conviction Can't Stop Gun Ownership

[JimDandy]

You may not be lying, but you would be wrong.

(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));

Neither Washington nor Colorado has changed 21 USC 802. Nor even has the authority to do so.

 

[Frank Ettin]

If you live in a state where pot is now legalized, then you would not be lying if you answered that you were NOT an "illegal" user of marijuana on the 4473 form. It seems that would be a slam dunk for a lawyer defending someone in Colorado, for example. This will get interesting.

Absolutely 110% wrong.

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, anyone 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. Federal law defines "unlawful user" as follows (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. For a current or former member of the Armed Forces, an inference of current use may be drawn from recent disciplinary or other administrative action based on confirmed drug use, e.g., court-martial conviction, nonjudicial punishment, or an administrative discharge based on drug use or drug rehabilitation failure.

   
   
5. 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).
   
   
6. 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.

 

[Armorer-at-Law]

Thanks for an excellent, brief and accurate explanation, Frank. There are many who don't want this to be and, so, choose not to understand it.

 

[steve4102]

If you live in a state where pot is now legalized, then you would not be lying if you answered that you were NOT an "illegal" user of marijuana on the 4473 form.

I would suggest you read Frank's post and also take the time to read this.
It is an open letter from the ATF to all FFL Holders.

http://www.nssf.org/share/PDF/ATFOpenLetter092111.pdf

 

[Dreaming100Straight]

Back to the decision of the United States District Court, District of Massachusetts, as interesting as it may be, what precedential effect does it have, if any? This was a summary judgment in which the Commonwealth agreed that plaintiffs were suitable persons to purchase and possess firearms and the Commonwealth proposed that the Massachusetts statutes as applied infringed on these individual plaintiffs' 2A right.

 

[Frank Ettin]

It's a trial court decision. It is not precedent.

 

[Dreaming100Straight]

I know it isn't binding precedent in the sense that it is not stare decisis, but is it properly cited as being persuasive?

 

[HiBC]

IMO,there is a rather telling trend.

Mr Frank Ettin ,in clear and definitive language,explains in no uncertain terms the situation.

And some folks keep denying it and trying to find wiggle room.

Its not that hard.

In a state that calls pot legal I can

A) Choose pot.I disqualify myself from legal firearms possession.I become a prohibited person.I make the choice to give up a Constitutional Right because pot is that important to me.OK,that is Freedom

B)I choose to preserve my RTKBA,even though it means I must politely decline to smoke pot.I explain"I prefer to keep my RTKBA" I have the integrity to not lie on the 4473,and I can prove it with a drug test.

C)I can choose to ignore the law,use pot,and possess firearms.I can rationalize it and argue for it multiple ways that make perfect sense to me.Just like I can legally drink,I can legally drive,bars have parking lots,and I can convince myself its OK to drink and drive.
I might get away with it for a lifetime.I might not.If I lie on a 4473,and am in possession of a firearm as a pot using prohibited person,I have committed two felonies.Period.How will it work out in court,if I get caught?One way to find out.I'm sure the prosecutor and the judge will see things my way.Maybe.


That's it.Unless you still think like an 8 year old,or you are prepared to make a test case out of it .

 

[Tom Servo]

I know it isn't binding precedent in the sense that it is not stare decisis, but is it properly cited as being persuasive?

Not really, since the two laws are fundamentally different.

The Massachusetts law is a lifetime bar for anyone who's been convicted at any point in the past. The federal law bars only those who are recent or current users.

 

[Frank Ettin]

And a trial court decision on such a narrow point really isn't very persuasive.

 

[Dreaming100Straight]

That is what I was thinking, Frank. It could be cited as persuasive, but if that is all you got, I was trained that you as much as admit you have nothing by citing such weak authority.

Still, I was thinking of another drop in the bucket, when arguing that very old incidents shouldn't be held against a CCW applicant as proof of lack of GMC.

 

[USAFNoDak]

Thanks Frank and Steve for the detailed information on this topic. I wonder if the feds will ever relent and follow the states. With Holder saying that they need to lighten up the sentences for some drug offenders in prison, it seems that the feds may be feeling that there should be an acceptance of marijuana as alcohol is accepted. That is not the case today, and based on the details you provided, it would not be wise to claim that you are NOT a user of a controlled substance on the 4473 if you live in a state which has legalized pot.

 

[Buzzcook]

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.

Emphasis mine.

The federal government was the first entity to issue medical marijuana. So there is precedent for marijuana being prescribed legally under federal law.
http://en.wikipedia.org/wiki/Legal_history_of_cannabis_in_the_United_States#Medical_use

Thirteen people were already enrolled and were allowed to continue receiving cannabis cigarettes; today the government still ships cannabis cigarettes to seven people.

 

[Frank Ettin]

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.

Emphasis mine.

The federal government was the first entity to issue medical marijuana. So there is precedent for marijuana being prescribed legally under federal law.
http://en.wikipedia.org/wiki/Legal_history_of_cannabis_in_the_United_States#Medical_use

Thirteen people were already enrolled and were allowed to continue receiving cannabis cigarettes; today the government still ships cannabis cigarettes to seven people.

Except you really don't understand what you are talking about.

Federal law allows for limited, lawful prescribing of drugs that can't otherwise be lawfully prescribed. It must be done under a formal research protocol and subject to oversight by an Institutional Review Board, as part of the clinical trial and investigation of new and novel drugs and therapies.

See, for example 21 CFR 1301.18 for some of the federal rules for conducting clinical trials with Schedule I controlled substances (which marijuana is):

§1301.18 Research protocols.

(a) A protocol to conduct research with controlled substances listed in Schedule I shall be in the following form and contain the following information where applicable:

(1) Investigator:

(i) Name, address, and DEA registration number; if any.

(ii) Institutional affiliation.

(iii) Qualifications, including a curriculum vitae and an appropriate bibliography (list of publications).
​

(2) Research project:

(i) Title of project.

(ii) Statement of the purpose.

(iii) Name of the controlled substances or substances involved and the amount of each needed.

(iv) Description of the research to be conducted, including the number and species of research subjects, the dosage to be administered, the route and method of administration, and the duration of the project.

(v) Location where the research will be conducted.

(vi) Statement of the security provisions for storing the controlled substances (in accordance with Sec. 1301.75) and for dispensing the controlled substances in order to prevent diversion.

(vii) If the investigator desires to manufacture or import any controlled substance listed in paragraph (a)(2)(iii) of this section, a statement of the quantity to be manufactured or imported and the sources of the chemicals to be used or the substance to be imported.
​

(3) Authority:

(i) Institutional approval.

(ii) Approval of a Human Research Committee for human studies.

(iii) Indication of an approved active Notice of Claimed Investigational Exemption for a New Drug (number).

(iv) Indication of an approved funded grant (number), if any.​

(b) In the case of a clinical investigation with controlled substances listed in Schedule I, the applicant shall submit three copies of a Notice of Claimed Investigational Exemption for a New Drug (IND) together with a statement of the security provisions (as proscribed in paragraph (a)(2)(vi) of this section for a research protocol) to, and have such submission approved by, the Food and Drug Administration as required in 21 U.S.C. 355(i) and Sec. 130.3 of this title. Submission of this Notice and statement to the Food and Drug Administration shall be in lieu of a research protocol to the Administration as required in paragraph (a) of this section. The applicant, when applying for registration with the Administration, shall indicate that such notice has been submitted to the Food and Drug Administration by submitting to the Administration with his/her DEA Form 225 three copies of the following certificate:...

Some years ago there was a formal clinical trial conducted with marijuana. The clinical trial has long been over, and there will be no new participants.

However, the last time I looked into the question there were still four participants alive and continuing to receive marijuana on the theory that it would be medically inappropriate to discontinue a treatment regimen once begun under the trial.

Any of those four still alive and using marijuana today are the only lawful users of marijuana in the United States. No one else ever will be unless the law is changed.

 

[JimDandy]

I wonder if they throw reunion parties like World War II combat units. I bet theirs are epic.

But Frank's post did make me wonder. Is the biggest obstacle to legalizing marijuana implications it would have for gun ownership? There's a strong push for relaxing marijuana controls. But the push for legalizing the two together is almost non-existent. There's not a whole lot of sympathy even around here where it's legal for the poor grower with the self defense shooting.

 

[KyJim]

But Frank's post did make me wonder. Is the biggest obstacle to legalizing marijuana implications it would have for gun ownership?

No. That's not even on the radar for most people, including gun owners. As aptly demonstrated in this thread, most people think if it is lawful in their state, then it is not unlawful use (and the people on this thread will have a much better grasp on the law than the typical person). And most people do not think of marijuana being addictive. They only think in terms of physical addiction. Marijuana can be psychologically addicting but, to my knowledge, it is not physically addictive.

IMO, there are serveral reasons people oppose legalization of marijuana. First, some folks are against it because it has been illegal for a long time. They are truly "conservative" in terms of not wanting to change. Second, some people believe it is morally wrong to take any kind of mind altering substance. Third, there are those who believe use in the privacy of a person's home is okay but are concerned that it will not be confined there. People will drive intoxicated and proving intoxication by marijuana is currently more difficult than proving alcohol intoxication. Finally, there are those who are concerned about the message it sends kids and how they may react.

 

[Frank Ettin]

I think KyJim is right on the money. In some States the political climate is congenial to the legalization of marijuana, but I don't see sufficient support nationally for a change to federal law.

And I also agree that there are a variety of reasons for that.

 

[Buzzcook]

Federal law allows for limited, lawful prescribing of drugs that can't otherwise be lawfully prescribed. It must be done under a formal research protocol and subject to oversight by an Institutional Review Board, as part of the clinical trial and investigation of new and novel drugs and therapies.

It is likely that I don't know what I'm talking about as I am not an expert on either marijuana or the law.

If I may continue though, the example I gave was the result of a court order, not a voluntary initiative by the federal government.
That program was ended by executive action rather than a change in the law.

It is quite possible that a modern federal judge might come to the same conclusion that the judge in my reference came to. He or she might even cite that case because it was not over turned by a higher court.
It is also possible, though not likely, that a modern president might reverse the decision of the Bush administration and reopen access to federal medical marijuana.



As we've seen with same sex marriage, change can happen with incredible rapidity.

 

[Frank Ettin]

...If I may continue though, the example I gave was the result of a court order, not a voluntary initiative by the federal government.
That program was ended by executive action rather than a change in the law....

Nonetheless, the litigation led to the development of formal FDA rules for the investigation of new drugs and the marijuana program was operated as a formal clinical trial subject to what have become standard rule for such undertakings.

 

[markj]

Didnt Oregon have this issue come up in court? Medical Mj user getting a legal carry permit? Court allowed it. Was only a few years ago.