Pot Conviction Can't Stop Gun Ownership

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steve4102

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A US District Court Judge ruled that two Massachusetts men still have their 2nd Amendment rights to own Firearms despite previous Marijuana convictions.

He ruled the portion of the Mass, Gun Control Act that prohibits Gun Ownership to those convicted of possession of a Controlled Substance Unconstitutional.

http://bostonherald.com/news_opinio...out_of_state_pot_rap_can_t_stop_gun_ownership

If a Federal Judge ruled this Unconstitutional on the State Level, would it not be Unconstitutional on the Federal Level also?
 
When ruled by a Federal Court addressing Federal law, and upheld by the Supreme Court if appealed, the answer would then, and only then, be yes.

Until then, only in Massachusetts, and only as far as the court ruled.
 
The State laws is Unconstitutional in Mass, but the Federal Laws deeming these two "Prohibited Persons" still applies, even in Mass.?
 
To further muddify the waters, the way the article explains it the judge didn't toss the MA state law, he basically just said, "Ignore it for weed, because you [the State] are backing down on how tough you want to be about it."

What was that definition of "mugwump" again?
 
You really can't tell much about what is going on from the linked article. However, I would just observe that a conviction for simple possession is probably a misdemeanor. A past conviction does not necessarily mean the person is currently an unlawful user of or addicted to marijuana. Form 443 asks, "Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?" I mean how many people smoked pot in this country when they were young but were never addicted and don't currently use?
 
If you have a Conviction for Illegal Possession of a Controlled Substance, are you considered and "Unlawful User" and therefor a "Prohibited Person"? IF so, for how long?
 
Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?"
Click to expand...

If strictly applied, there'd be a huge number of people DQ'd for caffeine addiction (coffee/cola) .....
 
For those convicted under state law of marijuana possession in the two state where marijuana is now legal; it is my understanding that those convictions will be removed from their records.

So it is possible that with no state record of conviction there is then no grounds for federal refusal of a purchase.

I also wonder about those states where marijuana has been decriminalized or is a misdemeanor. If there is no conviction with punishment being administrative, does that count as a conviction to the feds?
 
This looks like much ado about nothing.

It appears that this Massachusetts case involved a federal trial court's ruling regarding the effect of very old marijuana possession convictions as disqualifying conditions under a particular Massachusetts firearms law.

It appears from the minimal information in the article that under Massachusetts law anyone who had ever been convicted of a drug possession offense was disqualified from possessing a gun -- perhaps even if the crime was a misdemeanor. The federal judge did not rule that law unconstitutional. He only found it unconstitutional as applied here.

A user of marijuana is still prohibited under federal law from possessing guns or ammunition, even if marijuana use is legal under state law. And a convicted felon is also under federal law prohibited from possessing guns or ammunition.
 
I can't say as to the State law, but Federal law is fairly detailed on what the unlawful user/addicted part covers, by referring to some legalese about Scheduled drugs as defined in another section as I recall.
 
Looks like the 443 form may be getting some wording changes in the not too distant future. CO and WA have made pot no more illegal than alcohol, and with the vast number of people around here and in CA with 'medical' marijuana cards, this is becoming a very slippery slope.

Just like alcohol, as long as a person is not under the influence while shooting or handling a gun, I don't really see the problem. Maybe we can setup a separate station at the range with free Funions and Ruffles to separate out any canabis users.
 
Being legal in WA/CO doesn't make it legal in NY, CA, or even WA/CO as long as it's illegal federally. The 4473 form could use an update, but there isn't an impetus for it based on WA/CO law changes.
 
Sierra280 said:
Looks like the 443 form may be getting some wording changes in the not too distant future. CO and WA have made pot no more illegal than alcohol, and with the vast number of people around here and in CA with 'medical' marijuana cards, this is becoming a very slippery slope...
Click to expand...
All completely irrelevant. Marijuana and marijuana use is illegal under federal law. It will remain illegal under federal law unless/until it is rescheduled under the Controlled Substances Act.

And as long as marijuana and marijuana use remain illegal under federal law, anyone using marijuana, even if legal under state law, is an unlawful user of a controlled substance and therefore a prohibited person under 18 USC 922(g)(3).
 
OK, we're looking at two separate things here.

The law under review by the court is a Massachusetts law, specifically § 131(d)(i)(e), which denies ownership of guns on the basis of "a violation of any law regulating the use, possession or sale of controlled substances as defined in section 1 of chapter 94C."

The case is Wesson v. Town of Salisbury. More from Volokh here.

This does not invalidate § 922(g)(3), which is a federal prohibition. It actually dovetails with it. Under 27 CFR 478.11,

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.
Click to expand...

Both plaintiff's convictions occurred quite a while ago, and with no recent violations. As such, they wouldn't be disqualified under federal law if they haven't been using in the last few years. The prohibition under review was a stricter one enacted on the state level.
 
It's part of our dual sovereignty system. Both levels have to legalize (or not have criminalized it) to make a thing legal.

Washington has legalized it (more or less- some conduct with it hasn't been legalized) so the state and lower police won't enforce some things no longer on the books. But the Federal agencies still can, and may or may not. The States had a lot of negotiating, and probably still more yet to do, with the Federal Government on what they would and wouldn't relax in other areas. Banking/Tax laws was one area on the news recently- something about not being able to claim rent paid on the square footage used to sell the marijuana itself.

I mention this to illustrate the point. We've already had at least one home invasion of a grower end in gunfire. Frank or one of the others can correct me if I'm wrong- but the State may have found that to be self defense. The Federal government could probably still arrest and try him for possessing controlled substances and firearms at the same time.
 
^^I believe that incident was in California. It was ruled as self defense, but even CA has minimum mandatory sentencing when it comes to drugs + guns. Very murky territory.
 
My take,which may be ...cynical.

Given current administration's history,from "choom Gang" to Al Sharpton's recently revealed cocaine issues,drug use,by itself,seems to be a very low priority issue at this time.State legalization seems to soften things further.

The "look the other way" thing seems to be the code of the day.

But,doggone,the current administration hates your guns.Ends justify the means.

Might legaliziong pot be a useful "get out the vote" tool?I think so.Its politically useful.

And,the vague,discretionary enforcement thing?Well,the net is in the water,and thousands,millions,maybe,of fishes are swimming into it.No need to spring the trap yet.Just let the naïve keep swimming in.They leave a data trail.A med pot card...I love the vending machine idea,just pop in your driver's liscense.

Then later,when the net is bulging full,you announce to the prohibited persons they have given up 2A.

Naw,they wouldn't do that...would they?
 
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.
 
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