Pot Conviction Can't Stop Gun Ownership

markj said:
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.
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It was the Oregon Supreme Court, and there's more to it.

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...
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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).
 
Being that this is the first opinion to overturn a ban based on prior substance and I believe the first case overturning a ban based on a criminal conviction it is actually is rather important. The Illinois Supreme Court recently avoided ruling on Lautenberg by stating DV convictions prior to its enactment did not trigger Lautenberg. That is the closet we'd gotten prior to this to my knowledge. A few more small wins for us (huge for the actual litigants) builds the case law needed for a larger challenge.

Justice Holmes said that “the proper derivation of general principals in both common and constitutional law ... arise gradually, in the emergence of a consensus from a multitude of particularized prior decisions.

Cases with vetted clients that are part of national level litigation are going to be scrutinized much more than law abiding litigants in smaller cases dealing with being disarmed via nonsensical laws. On hard questions building a foundation of case law is vital to swaying the Court.

Take the 18-20 year old NRA cases. Those were hard questions. I got the feeling from reading the McCraw opinion that the panel wanted to rule in the NRA's favor but was bound by BATF which is a hard question to begin with and asked the Court to strike down an act of congress.

If I were the I'd support Ms. Horley's case in Illinois and file one on the complete ban for gun ownership on 18-20 years olds in Hawaii.File in a friendly jurisdiction on 18-20 year old carry and find a Plaintiff that already needed one like a 18 year old college girl being stalked. Then finally revisit NRA v. BATF.

There are similar paths that build off the jurisprudence this case has begun.
 
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).
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Hasnt happened so far. Maybe the time for change is here? I hope so, as it is the same as booze IMHO and drunks carry all the time......
 
markj said:
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).
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Hasnt happened so far....
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And you know this how?
 
Bernie Lomax said:
If strictly applied, there'd be a huge number of people DQ'd for caffeine addiction (coffee/cola) .....
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And huge numbers more DQed for nicotine (cigarettes, chew, etc.)
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No.

  1. Under 18 USC 922(g)(3), anyone:
    ...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));...
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    is prohibited from possessing a gun or ammunition.

  2. Under 21 USC 802(6), a controlled substance 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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  3. So alcohol, tobacco, or caffeine, among other things, is not a "controlled substance" for the purposes of 18 USC 922(g)(3).
 
markj said:
...If she was arrested I would think it would be in the news.
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Why?

The fact is that you have no positive evidence. We really don't know what happened with Ms. Willis, her gun, or her marijuana after the Oregon Supreme Court decision.

Was the lawsuit orchestrated by pro-marijuana advocates to test the waters? Did the Oregon Supreme Court's clear statement that federal law still applied encourage Ms. Willis to re-think trying to keep both her gun and her marijuana? We simply don't know.

Absence of evidence is not evidence of absence.

In any case, even if federal prosecutors have thus far decided to exercise their prosecutorial discretion and not pursue Ms. Willis at this time doesn't mean that they won't go after others.

Anyone using marijuana, even if legal under state law, is committing a federal felony by having a gun and/or ammunition in his possession. If he wishes to leave his fate to the [often not so] tender mercies of his local United States Attorney, he's welcome to do so.
 
Absence of evidence is not evidence of absence.
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That got me wondering. Does that also apply to the Federal prosecutor? Is a medical marijuana card evidence of illegal marijuana use/addiction or is it just enough to justify a search warrant, or not even that? One can get a concealed pistol license without a pistol. I would assume one can get a medical marijuana card and never use marijuana.
 
JimDandy said:
...Is a medical marijuana card evidence of illegal marijuana use/addiction or is it just enough to justify a search warrant, or not even that?....
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It's evidence. It's not proof. It's important to understand the difference.

Basically, evidence is something the indicates that a proposition might be true. Proof is evidence which is sufficiently strong to compel one to conclude that a proposition is true. Sometimes a single item of evidence will be sufficient to compel acceptance of something as true. Sometimes it will require the accumulated strength of a number of items of evidence to finally be convincing.

Consider the old saw, "If it looks like a duck, quacks like a duck, walks like a duck, and is regularly seen in the company of ducks, it's a duck." Each factor is consistent with the inference that the subject is a duck. All taken together can be accepted as proof that the inference is in fact true.

On the other hand, a judge might very well agree that possession of a medical marijuana card is sufficient probable cause to justify issuance of a search warrant.
 
Is possession of a medical marijuana card alone enough to deny a NICS check?
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No, for two reasons.

First, the NICS database covers people who have been convicted of a crime or otherwise deemed to be disqualified. I don't know of any state issuing marijuana cards that reports them to NICS.

Second, I could qualify for a card and even get one in some states. It doesn't mean I'm actually using marijuana.

Heck, I've met people who hold CCW permits but don't own a gun. Same idea.
 
Heck, I've met people who hold CCW permits but don't own a gun. Same idea.
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Yeah that was one of my examples a couple posts ago.

So- having a medical marijuana card MAY be enough for the ATF/FBI to get a search warrant for a blood test if you've got a firearm, but it's not enough to say No to a firearm NICS check in the first place.
 
Is a medical marijuana card evidence of illegal marijuana use/addiction or is it just enough to justify a search warrant, or not even that?
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Probably not enough by itself for a search warrant. Police would need something to indicate where the marijuana is located (house, office, etc.) and something to indicate it has been at that location recently. It would not take a lot, but it would take something.

Think of those gun owners who previously registered AR-15s with high-cap mags that are now illegal in their state. The fact of registration does not mean there is probable cause to search their homes for illegal hi-cap magazines, IMO.
 
The fact is that you have no positive evidence. We really don't know what happened with Ms. Willis, her gun, or her marijuana after the Oregon Supreme Court decision.
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Oregon forums report others have indeed recieved a renewal on their carry permit with a med mj card.


Heck even Iowa legallized med mj for epileptics. I never would of thought Iowa would go there.
 
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