On guns, Federal Law trumps State Law?

[MarkCO]

I know there are both sides of the debate represented here...

http://www.pe.com/articles/firearms-791024-marijuana-law.html

There are a lot of topics that can be discussed about this, but given the actual laws, do you have any legal argument to prove that the police were right or wrong?

[fitz19d]

I think it would be more debatable if they were state legally like possessing it ie like a shop. But that they admitted to using it which is on the form you fill out on the BGC, I think would clearly leave them SOL. (In favor of that fed restriction or not.)

[davsel]

[ROFL1]

That's all I got.

[Grant H.]

4473 is a Federal Form.

Marijuana is illegal at a federal level.

4473 says you can't use MJ. Doesn't say crap about "medicinal" or "my state says I can"...

Surprised this doesn't happen more.

ETA:

No, the 4473 doesn't say you can't use MJ, but it asks if you do use it, and if you answer yes you automatically fail the 4473.

Your two options, if you use any schedule 1 drug, are:
1. Commit felony perjury and maybe get all guns taken away later along with additional charges
2. Don't own guns

IMO, the cops did the correct thing in CA.

[Martinjmpr]

Until an appellate court or (better yet) the SCOTUS rules on this issue we don't really know. The ATF states that it is illegal but that is their opinion, it is not a statement of law.

And before someone says it (because I know someone will), yes, I realize the ATF can screw you 6 ways from Sunday based on that opinion alone.

That doesn't change the fact that an opinion is what it is. The law says that you have to be an "illegal user" in order to be prohibited. A MMJ card holder can legitimately say that his MMJ card makes him a "legal user."

ATF would counter that because MJ is a Schedule 1 drug, there is no such thing as a "legal user." But, again, what they are stating is a legal opinion, not a law. Until a competent court rules on the issue it will be a legal gray area.

The biggest issue isn't even guns or MJ. The biggest issue here is Federalism: Does the state have the authority to make something "legal" that the Feds say is illegal? The general rule is "no" (like Arizona's illegal immigration rules) but there is a strong argument to be made that Congress has no authority to regulate an activity that takes place entirely inside a state.

And there is the political aspect, too. Suppose SCOTUS rules that Federal law trumps state law re: MJ and that all the states that have legalized MJ must rescind those laws.

And the states tell the Feds to FOAD and they're not going to. What then? Is the president going to send the Army in to close all the MJ shops? Are hordes of Federal agents going to swarm into the state and start arresting people for selling MJ? And what if people start resisting?

You think the Feds want to open up that can of worms?

OTOH, if the court either doesn't issue a ruling, or rules in favor of the states, then what else can states do? Can they legalize machine guns, SBRs and suppressors without all the NFA paperwork as long as those items don't cross state lines? And what if they do, anyway, and basically dare the Feds to do something about it?

[Bailey Guns]

I don't think the US Code that covers this is gray at all. As a matter of fact, to me it's pretty black and white.

[Great-Kazoo]

UNTIL MMJ is removed from the classification it's at now Federally. ANY Use of it you're SOL. There is no WELL it's legal in X state. The 473 IS A FEDERAL FORM. The question asked on the 4473 relates to FEDERAL recognition of MJ . Nothing more, nothing less.

3-4 ? years ago the Feds requested the MMJ records from the state of CO. The state complied, people SCREAMED HIPPA Law Violation. The problem with I'm Protected under HIPPA is the MMJ registry was not a HIPPA covered registry just a state one for issuing MMJ Cards.
Yes it sucks.

[Double00]

From my home town paper.

[HoneyBadger]

OTOH, if the court either doesn't issue a ruling, or rules in favor of the states, then what else can states do? Can they legalize machine guns, SBRs and suppressors without all the NFA paperwork as long as those items don't cross state lines? And what if they do, anyway, and basically dare the Feds to do something about it?
Hasn't at least one state already declared that suppressors manufactured within the state are not subject to NFA rules? Wyoming maybe?

[brutal]

There are many states (AZ?) that are pushing through firearms protection laws from any new Fed regs.

It's certainly going to be an interesting couple of years coming up with regards to our rights and the protection of them from Federal infringement.

[brutal]

Here's another - I've been eyeballing Idaho as a retirement destination, I wish I could make it work before.

BREAKING: Idaho governor signs emergency legislation nullifying all future federal gun lawshttp://truthinmedia.com/breaking-idaho-governor-signs-emergency-legislation-nullifying-all-future-federal-gun-laws/

Sadly, it doesn't seem to have much teeth as it only prevents state officials from enforcing Fed laws. Doesn't appear to keep the Feds out of the business of jack booted thuggery.

[GilpinGuy]

Here's another - I've been eyeballing Idaho as a retirement destination, I wish I could make it work before.

BREAKING: Idaho governor signs emergency legislation nullifying all future federal gun laws

http://truthinmedia.com/breaking-idaho-governor-signs-emergency-legislation-nullifying-all-future-federal-gun-laws/

Sadly, it doesn't seem to have much teeth as it only prevents state officials from enforcing Fed laws. Doesn't appear to keep the Feds out of the business of jack booted thuggery.

Correct me if I'm wrong, but don't the Fed Assholes rely on local police to actually carry out any enforcement? IOW for example, the Feds want to confiscate XXX from John Doe. Maybe there would be a few Fed Asshole head honchos overseeing things but the overwhelming force would be local LEOs.

If the local Sheriff said "Fuck that, we aren't going to be involved", that would pretty much end it. Unless the Fed Assholes fly in there own thugs, of course.

Am I way off here?

[BPTactical]

Correct me if I'm wrong, but don't the Fed Assholes rely on local police to actually carry out any enforcement? IOW for example, the Feds want to confiscate XXX from John Doe. Maybe there would be a few Fed Asshole head honchos overseeing things but the overwhelming force would be local LEOs.

If the local Sheriff said "Fuck that, we aren't going to be involved", that would pretty much end it. Unless the Fed Assholes fly in there own thugs, of course.

Am I way off here?

Yes.
Waco, Ruby Ridge for case study.

[Great-Kazoo]

Yes.
Waco, Ruby Ridge for case study.

The other way to work around local lE's is using the "WE suspect and Have solid evidence, they were using federal land to commit XXX"

[Skip]

Until an appellate court or (better yet) the SCOTUS rules on this issue we don't really know. The ATF states that it is illegal but that is their opinion, it is not a statement of law.

[snip]

We do know.

http://codes.lp.findlaw.com/uscode/18/I/44/922


(3) is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances

While inclusion/exclusion of "controlled substances" is subjective according to their schedule, this restriction is codified in law. For MJ users, the best possible outcome would be national legalization/delisting.


I don't think the US Code that covers this is gray at all. As a matter of fact, to me it's pretty black and white.

^ Yup

Not saying I agree with the restriction/law either. One of the many things us extremists non-compromising ammosexuals compromised on long ago.

I think one of the reasons Dems support local legalization but won't support national legalization is to create prohibited persons and have the discretion to ruin lives.

[68Charger]

I believe the 4473 is pretty clear with respect to controlled substances, but what's not so clear is the jurisdiction- but unless that's challenged and heard by the court, it will stand well enough for the handcuffs. If we're talking about a store that has an FFL, then that License gives them jurisdiction- but if it's a private party sale? Just because the state of Colorado requires a BGC for a private sale, does that give the Feds Jurisdiction?

Maybe this is what the Boulder DA was meaning that he was going to start pressing charges for?

ETA: thought it might be useful to cite the "memo" mentioned in the article:

https://www.atf.gov/file/60211/download

And the federal 922(g) law states the conditions when someone would be prohibited

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.

obviously relies upon the commerce clause- hence why I say jurisdiction is questionable

[Martinjmpr]

The key word is "unlawful user." A person with an MMJ card (or any person in a state that has legalized MJ for recreational use like CO) can legitimately argue that they are not unlawful users, and that's not a frivolous argument, either. It's a very powerful one that gets to the heart of an issue that our country has struggled with since its founding, the question of where does the authority of the Federal government stop.

After all, if the state has explicitly said they can use MJ, then how can their use be unlawful? States have a general police power to decide what is lawful and unlawful within their own boundaries. The Federal authority only exists where the Constitution has given the national government that authority.

Whether the form is a federal form or a state form is irrelevant - the only relevant question is whether a state law that allows someone to use MJ makes them a "lawful" user vs. an "unlawful" user.

Right now, law enforcement benefits from the ambiguity and that's probably why they DON'T want a court to rule on this. I'll bet the feds would bend over backwards to avoid getting this question to a court because they're afraid a court might rule against them and say that someone who lives in an MJ legal state or someone with a MMJ card IS a "lawful user" which would deprive them of a way to try and limit gun sales.

Incidentally, don't think I'm an MJ user or supporter. I voted against amendment 64 and I still think that all the rosy predictions about how great legal MJ is going to be for Colorado were overstated, and that there's going to be some significant negative effects like increases in petty crime, increases in welfare costs, child abuse and neglect, etc.

But in terms of legalizing MJ being a way to roll back Federal overreach, and for the state to say "screw you" to the feds, I have to admit I kind of like it. There are pot shops all up and down Broadway, and every time another one opens, the options for the feds to swoop in and close them down becomes more and more problematic for them.

In short, all of the states that have legalized MMJ (and I think it's over half of them now) are, in essence, in open (if rather mild) rebellion against the Federal government. It's a "peaceful" rebellion, but it's still a rebuke to the Federal government's authority.

[Skip]

[snip]

In short, all of the states that have legalized MMJ (and I think it's over half of them now) are, in essence, in open (if rather mild) rebellion against the Federal government. It's a "peaceful" rebellion, but it's still a rebuke to the Federal government's authority.

A rebellion that stops short of gun rights, which is the topic at hand. When was the last time you saw a state sue the Feds for denying a citizen of that state RKBA because he used MJ (MMJ or no)?

Any use of MJ/MMJ is expressly illegal at the Fed level. With the current scheduling, there is no provision for MMJ. There is no gray area here and anyone who says there is doesn't understand the law but it can change (schedule).

http://www.dea.gov/druginfo/ds.shtml



Schedule I
Schedule I drugs, substances, or chemicals are defined as drugs with no currently accepted medical use and a high potential for abuse. Schedule I drugs are the most dangerous drugs of all the drug schedules with potentially severe psychological or physical dependence. Some examples of Schedule I drugs are:
heroin, lysergic acid diethylamide (LSD), marijuana (cannabis), 3,4-methylenedioxymethamphetamine (ecstasy), methaqualone, and peyote

This scheduling makes it illegal use no matter what the state law says.

This is also the problem with giving away the 10th Amendment. The decision just isn't up to a state which can "rebel" for only as long as FedGov tolerates it. If Obama pulled highway or education funding from Colorado (our tax dollars anyway), weed wouldn't be legal here for long.

[68Charger]

brings up a question- I saw no mention of arrests in the article... just confiscation of firearms.
So what law gives them that authority to confiscate, but not to arrest?

(or was the article just missing detail?)

[Martinjmpr]

A rebellion that stops short of gun rights, which is the topic at hand. When was the last time you saw a state sue the Feds for denying a citizen of that state RKBA because he used MJ (MMJ or no)?


The state wouldn't sue (no standing) but an individual could. And as more states legalize MJ, sooner or later someone will and the courts will have to decide that.


There is no gray area here and anyone who says there is doesn't understand the law but it can change (schedule).

http://www.dea.gov/druginfo/ds.shtml



This scheduling makes it illegal use no matter what the state law says.


Unless you can cite an appellate court decision that supports that, what you just stated is an opinion, not a legal fact.

Of course the DEA, the ATF and the DOJ are going to say it's illegal. They have to, because they're the Federal government.

But they are not a legislature that writes laws, and they are not a court that interprets laws and says what the laws mean. They are executive branches, all of them. So until the issue of whether a state can legalize something that is federally illegal gets in front of a court with the proper jurisdiction, it actually is a gray area of the law. ;)

[cstone]

brings up a question- I saw no mention of arrests in the article... just confiscation of firearms.
So what law gives them that authority to confiscate, but not to arrest?

(or was the article just missing detail?)

Taken for safe keeping while the matter is referred for further investigation.

A prosecutor could try asset forfeiture to keep the weapons or just work out a deal for the owner to surrender the property rather than spend a great deal of money hiring an attorney to get them back. Depending on how much money the guns are worth, it is quite possible that the owner could buy many more guns than it would cost to recover those taken.

I'm not saying it is right or fair, so please don't respond with some sanctimonious appeal to the Constitution and the rights of free citizens...I like to keep that stuff for my own posts [Coffee]

[Martinjmpr]

BTW I agree with those who say the wise and prudent thing to do is to follow the Federal law as it's currently written, which means if you use MJ you can't legally buy a gun from an FFL dealer. Nobody wants to be the "test case" when the consequences of failure could mean 5 years in a Federal "pound me in the ass" prison.

But the Heller and McDonald decisions have opened up some very interesting opportunities for expanding gun rights, and as the years go on, we will probably see more and more of the current laws being challenged in court.

[Skip]

The state wouldn't sue (no standing) but an individual could. And as more states legalize MJ, sooner or later someone will and the courts will have to decide that.

Unless you can cite an appellate court decision that supports that, what you just stated is an opinion, not a legal fact.

Of course the DEA, the ATF and the DOJ are going to say it's illegal. They have to, because they're the Federal government.

But they are not a legislature that writes laws, and they are not a court that interprets laws and says what the laws mean. They are executive branches, all of them. So until the issue of whether a state can legalize something that is federally illegal gets in front of a court with the proper jurisdiction, it actually is a gray area of the law. ;)

I don't think you understand how the legal system works. The law is "the law" unless overturned. I've given you multiple links so you can learn about the "the law" and how it is applied, and how it could be changed to straighten this out.

This is not an opinion. It was a law passed by Congress and signed into law by LBJ...

https://en.wikipedia.org/wiki/Gun_Control_Act_of_1968

So again, to be plain, this is the Legislative Branch, writing a law, signed by the Executive, which the Judicial Branch has not overturned. There is no gray area.

This law gives FedGov the ability to schedule drugs (Controlled Substances Act (21 U.S.C. 802)) and call their use illegal under all or some circumstances (according to schedule). While you can argue the minutia of how a drug is scheduled but it doesn't change "the law."

[Martinjmpr]

I don't think you understand how the legal system works.

I'm fairly certain that I do. ;)

[SamuraiCO]

As long as MJ is class I narcotic at Federal level all use is illegal. Doesn't matter what states or MD's state your medical need is. Hence the reason private companies can still fire those who turn up positive on drug tests and banks are still wary about handling cash from said dispensaries.

Need to change law at Federal level then all would be cleared up.

[asmo]

What the cops *should* have done is turn it over to Federal law enforcement officers; since its a Federal offense. But since state/local departments are monetarily compensated for enforcing Federal laws; what they *should* do - and what they really do - are at opposite ends of the spectrum.

[Irving]

Is it Federally illegal to concealed carry a firearm?

[68Charger]

As long as MJ is class I narcotic at Federal level all use is illegal. Doesn't matter what states or MD's state your medical need is. Hence the reason private companies can still fire those who turn up positive on drug tests and banks are still wary about handling cash from said dispensaries.

Need to change law at Federal level then all would be cleared up.

It goes beyond Federal law... MJ is schedule 1 drug in Single Convention on Narcotic Drugs of 1961 (an international treaty)
So you can't just change Federal law, it would be a treaty violation.

[Martinjmpr]

Is it Federally illegal to concealed carry a firearm?

On Federal "enclaves" like Federal buildings, military bases, courthouses, post offices and such the general answer is "yes." National Parks used to fall under that rule, too but in 2010 the NPS changed their regulations and now they follow state law WRT concealed carry in open areas of the parks and monuments. Carrying in NPS buildings or facilities is still prohibited, even if you have a permit. The only exception to that (that I'm aware of) would be Federal Law Enforcement officers on duty.

[Irving]

Martin you misunderstood my question. In general, not at a Federal building, is there a Federal law that says one cannot carry concealed? I'm just clarifying for myself, as I don't think that it is federally illegal.

[Irving]

Never mind, I'm way over thinking this.

[Martinjmpr]

Martin you misunderstood my question. In general, not at a Federal building, is there a Federal law that says one cannot carry concealed? I'm just clarifying for myself, as I don't think that it is federally illegal.

No, the Federal government has no authority to make such a law.

As I said above, State governments have what is called the "General Police Power" that gives states the authority to regulate almost any aspect of life. The only limits on state authority are those actions that are specified as Federal powers, or those actions that are prohibited under the Constitution.

The Federal government, OTOH, is a government of limited and specified powers. IOW, Congress only has the authority to make laws under circumstances that are specified within the Constitution. The Federal government does not have the authority to make laws of general application that apply within the states because that's what the State's police power is for (and that's why the 10th Amendment was put into the original Bill of Rights.)

Obviously, there has been a long history of the Federal government encroaching on the power of the states, and often this was done with the full cooperation and collusion of the states, but that's really a topic for another thread.

[spqrzilla]

The bottom line is this. Under the US Constitution supremacy clause, Federal law does trump state law. So long as the Federal law is itself constitutional. And for the last 8 decades, US Constitutional law has given the Federal government extraordinarily broad powers through the commerce clause. That isn't going to change.

So any argument that the Federal government does not have jurisdiction to prohibit marijuana possession, nor to prohibit gun possession by users of illegal drugs, has no realistic chance of success.

[Martinjmpr]

The bottom line is this. Under the US Constitution supremacy clause, Federal law does trump state law. So long as the Federal law is itself constitutional. And for the last 8 decades, US Constitutional law has given the Federal government extraordinarily broad powers through the commerce clause. That isn't going to change.

So any argument that the Federal government does not have jurisdiction to prohibit marijuana possession, nor to prohibit gun possession by users of illegal drugs, has no realistic chance of success.

There have been a number of recent cases where the SCOTUS has slapped down the Federal government and told them that the Commerce Clause is not the blank check they assumed it was. In addition, WRT guns, all the current gun and MJ laws were written before Heller and McDonald. Both of those cases drastically change the landscape regarding what the government can and can't ban. So I would disagree with your last sentence and say that this is probably one of the best times for activists to challenge the Federal government on guns.