View Full Version : Drugs & Guns (Unintended consequences of medical marijuana and federal gun laws create a conundrum.)
funkfool
04-09-2010, 15:33
There was a post recenty by a member who stated something about "Two list you shouldn't be on at the same time" kind of thing...
Anyway - there ARE Consequences.
And HEEEERRRREEEE they are:
http://thebroadside.freedomblogging.com/2010/04/01/drugs-guns/
Drugs & Guns (http://thebroadside.freedomblogging.com/2010/04/01/drugs-guns/)
April 1st, 2010, 8:19 pm
posted by Seth Richardson (http://thebroadside.freedomblogging.com/author/sethr/)
Unintended consequences of medical marijuana and federal gun laws create a conundrum.
By Seth Richardson
Steve Sarich fought his way free of a home invasion robbery, nearly killing an armed intruder in the process, by exercising his right to keep and bear arms. But Sarich no longer has that right, according to Washington state’s King County Sheriff’s Office, merely because Sarich is also a lawful medical marijuana user. Sarich, a law-abiding citizen, did nothing more than defend himself, but now he potentially faces 10 years in federal prison and a huge fine.
After police seized his firearms as evidence in the home invasion, Sarich tried to buy a shotgun and pistol to replace them, only to find the purchase denied because he failed the state’s background check. Investigators performing the background check searched the medical marijuana patient registry as a part of the check, and found Sarich’s name on the list. The gun purchase was denied because his registration as a medical marijuana user identified him as an “unlawful user” of a controlled substance because marijuana is illegal under federal law, even if not under state law.
But worse than the denial of his purchase are the federal charges he could face for falsifying the federal Form 4473, which must be filled out whenever someone purchases a firearm from a dealer. One of the questions on the form asks “are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic or any other controlled substance?” Falsifying an answer to any question on the form can bring 10 years in federal prison and a $250,000 fine. Answering that question honestly will prevent the sale from proceeding, and the dealer is prohibited from transferring the firearm to the buyer.
The authority of the federal government to infringe on the right to keep and bear arms when it comes to illegal narcotics use has been thoroughly litigated, and the courts have upheld the restrictions of 18 USC 922 regularly as applied to criminal drug addicts. But never before has this question been presented in the context of drug use that is legal under state law, but not under federal law.
For other types of drugs, like narcotics, the restriction in the law includes “unlawfully” and “addicted to” any controlled substance, which includes addictions to otherwise lawful narcotic prescribed for medical conditions. The intent is to prohibit the transfer of firearms to people who have narcotics addictions that might result in misuse of the firearm.
But marijuana is treated differently, and no addiction is required, all that is required is that you “use” it, and that the use is unlawful. According to federal authorities, there are no lawful uses for marijuana, period, so no user of marijuana can buy a gun, period. Moreover, simple possession of a firearm along with illegal drugs, including any amount of marijuana, is an automatic five year federal prison sentence.
The answer to the Form 4473 question is ambiguous when it comes to Colorado residents, because our state Constitution makes possession and use of medical marijuana lawful. Therefore, the question arises if one can answer the question truthfully by saying “no” to the question “are you an unlawful user…”
The question does not ask which law one might be violating, and the question of the supremacy of federal anti-narcotics laws over state Constitutions is an unanswered one. Certainly Sarich, if charged, should argue that he answered honestly according to his state’s laws, however unlikely he is to prevail in federal court using such a defense. But the larger question of Federalism, the power of the states to regulate commerce in firearms and medicine that does not cross state lines, remains unresolved, and one of the most important questions of our age.
Upon which law are citizens permitted to rely? In Colorado, there is an explicit statute, based on a common law principle, that a citizen may not be held criminally liable for violating a law when a state official tasked with interpreting that law says that the conduct involved does not violate the law. This reliance on the official acts of the state arguably extends to amendments to the state Constitution, which is the fundamental, organic law of the state, and should exempt people who act in obedience to it from criminal prosecution.
But this brings up questions of state sovereignty and federal power. When considering such issues, we should ask who is better suited to regulate individual conduct and medical practice? The states, or the central government?
Should a person’s fundamental, individual Supreme Court approved 2nd Amendment rights be infringed by the federal government when the legality of the conduct is expressly affirmed by a state Constitution? Should otherwise law-abiding medical marijuana patients be denied their right and their ability to be armed for self defense, or duck hunting for that matter, based on a judgment by federal bureaucrats that using marijuana is socially undesirable? Does the desire of the federal government to suppress illegal marijuana use constitute a compelling need to disarm legal medical marijuana users? Is the existing regulation the minimum necessary regulation that will achieve the legitimate governmental purpose of preventing criminal users of marijuana from obtaining firearms without unduly infringing on the gun rights of medical marijuana users acting in accord with state law? Arguably not.
More importantly, should state authorities conducting background checks for firearms purchases be permitted to access medical marijuana registries as a matter of state policy, or should the states interfere with potential federal abuses by refusing to allow either state or federal law enforcement to access medical marijuana registry information?
Would Steve Sarich have survived the initial home invasion if he had obeyed the law and disposed of his firearms as soon as he became a lawful medical marijuana user, as federal law requires? Would that have been a fair and just result?
Illegal drug use aside, these questions must be resolved quickly, because millions of law-abiding medical marijuana users nationwide are being wrongfully disarmed and subjected to the threat of federal prison merely for treating their illness according to their state’s laws.
This is yet another example of the tension between state laws and federal laws surrounding medicinal marijuana, and why it needs to be resolved authoritatively by amendment to the U.S. Constitution. Far easier, and more quickly accomplished would be a simple revision to 18 USC 922 adding a provision that use of medical marijuana in accordance with state law shall not be considered “unlawful use” as applied to federal gun control regulations. This could be proposed in Congress as the “Medical Marijuana Patient Gun Owner’s Protection Act” in a few days, and passed in a few weeks, if the will of the People demanded it.
Medical marijuana, along with mandatory health insurance purchase are likely to be the genesis of a test of Federalism and a final determination of whether the federal government is a limited government of enumerated powers and a creature of the states, or if it is a plenary general government that has arrogated all power and control to itself.
And that determination will reveal whether we still live in a Constitutional Republic or whether we now suffer under tyranny. The answer to this question will dictate the necessary response of the People, who have both the power and the authority to revoke any and all authorities they have granted to the federal government, at their will, and return to governance by consent, not by fiat.
wilsonpenfam
04-11-2010, 07:51
does the medicare plan cover medical marijuana?
It seems to me that because the state law changed it does not really change anything. The buyer is still in violation of Federal law, and therefore cannot buy firearms. No "conundrum" in my mind. The author may not like it, but that's the way it is.
Some states have changed gun laws and there is now a "conundrum" between the state and feds on gun laws. In my case I'd respect the most strigent law, making sure that my actions were legal by both state and federal law before I did anything. It's no different with medical weed laws.
Oh, and for the record and to be fair, I don't support the state laws on marijuana . Bad move in my opinion. I don't support the federal laws on some of the gun restrictions, but I follow them to a "T".
Bob
Sounds like a great reason to investigate the power of the states. If the state wants to let you have a medical marijuana card and own a gun, then the feds shouldn't have anything to say about it. Good luck getting that cow back in the barn, but one can always hope.
Delfuego
04-11-2010, 12:35
What is worse???
Being an illegal Marijuana user?
Or
Being an illegal gun owner?
It would be nice to be a legal "both".
I understand the questions that arise but let me pose this: If I were to use my firearm in legal defense while intoxicated, wouldn't I be criminally liable? YES I WOULD! Even if you are a lawful user of a substance, it does not give you the right to use a firearm under its influence. Posession should be legally allowed provided that there is no history of abuse or addiction (I do advocate that multiple DUI's be grounds for denial of a firearm). However you have to make the choice; "Do I want the ability to legally use a firearm in self defense or get high/drunk?" No one is stopping them from defending their life, just not using a firearm to do it. Just as you can not drive a car when intoxicated, you have to find alternative transportation.
For those who decide to take the responsibility to defend their life and those around them by carrying a firearm, the choice is easy.....
What does being high have to do with this? If it was self defense then it shouldn't matter if you were high AND drunk. Shouldn't be an issue either way.
What does being high have to do with this? If it was self defense then it shouldn't matter if you were high AND drunk. Shouldn't be an issue either way.
True but it does matter. In some senerios It might be harder to prove that it was self defence vs. some guy that was high/drunk with a gun.
Honestly my wife has had some panic attack problems and I really don't care for the drugs that doctors put people on to make them "normal" and we looked into medical marijuana. We both decided that her CCW was way more important if she ever needed it plus, guns and weed are a NO NO!
Delfuego
04-12-2010, 01:10
A medical marijuana card should not preclude you from owning a firearm, visa vi the background check, in my opinion. It should not be any different than a Vicodin prescription. Should a Vicodin script flag a background check? If it truly does...
Remember, the fed govt does not consider marijuana a legal drug, therefore having a prescription makes you an unlawful user and/or addicted to it. The fed govt guarantees your right to firearms, not the states. If they say medical marijuana card= no gun purchase: they can. No one is denying their right to self defense, just the purchase of a firearm through a licensed dealer.
That brings up a good question. Just because you are not allowed to purchase through an FFL, does that mean that you are not allowed to own a gun?
Since friggin' when does pot do anything for pain?
Ummm, since forever. Seriously.
It seems that they are just being prevented from purchasing from a licensed dealer, not from ownership or posession (unless under the influence of the medication).
So it doesn't seem like a huge deal if you are only prevented from buying from an FFL. Sure, your options are more limited, but if it is not illegal for you to actually own guns, then it isn't quite as big of a decision to get a card or not.
Don't forget though that posession of a firearm while under the influence is still illegal in Colorado. Even if it is a drug that is prescribed (vicodin, oxy, marijuana, etc..), you are in violation of CRS if you are in posession of a firearm under the influence of that substance.
That's a totally moot point IMO. Alcohol is legal and possession of a firearm is illegal while under the influence. Despite what people think, just because someone has a medical marijuana card, doesn't mean that they are high all the time. Plus, good luck proving that someone was high at the time.
Tests can confirm presence of THC up to a week prior to the testing. Blood tests (although only accureate for a few hours) are common for DUI suspicions, could be easily implemented when an officer suspects any drug impairment with posession of a firearm.
There are all kinds of tests, including hair sample tests that can reveal drug use for several months past, but proving that someone was under the influence at the time is different. Not as easy as with alcohol. Actually, I thought that was one of the main complaints with officers about legalizing weed, is that they couldn't easily determine how much weed was in some one's system at the time since you can't just blow into a breathalyzer or something.
Blood and silivia tests can confirm usage within the last few hours, perhaps up to a day or more, and indicate a positive within minutes of the drug's usage.
Delfuego
04-12-2010, 13:29
Quoted from Form #4473
"e. Are you an unlawful user of, or addicted to, marijuana, or any depressant, stimulant, or narcotic drug, or any other controlled
substance?"
This is the question in question (pardon the grammar) line "E".
I think the term "unlawful user" is very vague, but so are all gun law specifics. I would assume that if you were busted for marijuana that would qualify you as a unlawful user. The medicinal marijuana card should not prevent you from passing a background check. We all know of the faults with the background check system, where a law abiding citizen is rejected, but somehow a person with a history of mental illness get his firearm without issue.
Anyway... aren't these medical records (permits) with the state of Colorado? Are these medical records shared with all branches of government? Are they gonna come for you or list you as a subversive person if the MM laws are repealed or overturned?
In the words of The Clash:
When they kick at your front door how you gonna come? With your hands on your head or on the trigger of your gun?
I would rather have the guns, jack-booted thugs are not afraid of pipes.
[Direct] [Peep]
haha, great choice in gifs.
Delfuego
04-12-2010, 14:19
Thank you...... Thank you very much...
I have been on the CalGuns website reading up on their situation, they have had MM for longer than us. Some have said they know people with both, and one user said he uses his MM card for a second ID when purchasing a gun.
Now I know the internet is not a place for corroborative evidence, and most people on the internet are crack-pots (me included).
But does anybody know someone in this situation? A person with both a MM card and a recent FFL purchase. Maybe a MM card and a CCW? I think this would be a good sticky. We have stickies for CCW and NFA items; this may preclude people from either of those. Just a thought...
I've got a friend who is thinking of buying another gun from CMMG, I'll find out how it goes for him.
Delfuego
04-12-2010, 14:49
No definitive answer per-se, but Alpine Arms in Eagle Colorado has this on their website.
http://www.alpinearms.com/faq.php#38
Yeah, that doesn't mean that they will pick it up on a back ground check.
Delfuego
04-12-2010, 15:21
That is true, but answering anything but "NO" on "12e" would prevent the purchase. Answering no on that question and having a MM card would make you a perjurer would it not?
If they knew about it. Colorado is a pretty huge pot smoking state, so it's not like people using pot haven't bought guns and just answered "no" on the form. That disclaimer on that website is probably just them trying to cover their ass.
Delfuego
04-12-2010, 15:30
I was not speaking specifically of Alpine Arms.
Rather that if you have a MM card, and try purchasing a firearm legally through a FFL you either must perjure your self or not get the firearm (by answering yes on 12e). I think the perjury crime may have some real jail time also.
I know, that's why this thread got started. Some guy checked "no" they saw him on a list and now he is in trouble for perjury.
Just another hurdle to get full legalization for marijuana. Good luck trying to convince people who haven't smoked pot that marijuana is less of a danger than alcohol. It's the exact same thing as trying to commit gun-fearing, non-owners that guns will kill people on their own if given the opportunity.
I don't want to start a fight or anything as I'm just honestly curious.
What is the benefit of marijuana over lab drugs? Why such a heavy push for it...
Reminds me of a shirt I've seen floating around: Man made Beer, God made pot... who do you trust? haha.
Delfuego
04-12-2010, 15:42
Legalize it! - Peter Tosh [Luck]
I personally think that alcohol destroys more lives than all the other drugs combined.
I think the monetary woes in this recession is the only thing motivating our beloved politicians to look into legalization.
Mo Money... Mo Money...
Big Bear,
I think the push is for decriminalization, more than actual beneficial uses of marijuana. I believe that most MM card holders don't really need it for medical purposes. All the people I know with a MM card just want to stay on the right side of the law and not get in trouble for smoking pot.
However some people (Parkinson/Cancer/Severely Ill) can and do benefit from MM. Those people should get whatever helps them with their illness. These people deserve to get medical marijuana and I hope it helps them. But they also should be allowed to legally own firearms too.
I don't want to start a fight or anything as I'm just honestly curious.
What is the benefit of marijuana over lab drugs? Why such a heavy push for it...
Cost, ease of use, versatility, can't over dose on it, familiarity, etc.
discussing this issue with ATF right now.....will post in a minute
funkfool
04-12-2010, 16:43
You guys rock. Excellent discussion. I have been working very hard today and just occasionally peeked in - and the posts kept coming in.
This is a very interesting topic as Fed vs State rules and regs collide - as the Fed attempts more control over health care and other aspects usually reserved for the State. I am sure we will be seeing much more of this.
After getting bounced around the ATF phones this afternoon, I still do not have an answer, mostly due to the fact that it was late in the afternoon when I called. I expect a call back tomorrow from one of the agents and I will post the results of that here....
newracer
04-12-2010, 21:47
Just a clarification for the topic, in Colorado you do not receive a prescription for MJ, just a statement that MJ may help your condition.
GreenScoutII
04-12-2010, 22:44
Personally, I don't think a citizens use of marijuana or ownership of firearms is any of the government's damn business at all. Obviously, guns and mind altering substances don't mix, but I'd be less concerned about a MM user being in possession of a firearm while high than I am about an alcoholic with a pistol when he is drunk.
I've said this before and I'll say it again: Marijuana prohibition is, without exception, the most ridiculous law on the books today.
No, I am not a pot smoker, but using my tax dollars to incarcerate people for using/possessing it is absurd. Alcohol prohibition, while immeasurably stupid in it's own right, made more sense than the ban on pot.
Not to mention that you can technically have a card, and not be a user. It would be an easy way to sue the Feds if you get a card, get declined for a gun, and test clean on a hair test for several months.
Legalize it! Taliban had no problem going to a firefight after a good smoke and neither did I.
I think they should legalize not because I am for using drugs (Never done pot or anything else in my life), but I don't like the idea of more government control over the people.
I get annoyed with stations like KBPI that are throwing it in everyone's face all the time, but I understand the want to legalize it and they have the means to reach a broad group of people and capitalize on it.
The only thing I will have an issue with is if my taxes don't go down if it is legalized. less people will be put in jail for pot, less enforcement will be needed from the DEA, and the taxes imposed should help significantly to either reduce my current taxes or help improve roads, facilities, public areas, parks, national forest, etc.
sure, legalize it, but I want to see some positive effects for both the users of marijuana as well as the non-users, not just a bunch people walking around wal-mart stoned out of their mind in the chip isle.
Legalizing weed isn't going to have a significant change on the amount of people that use it, in my opinion.
The government will NEVER do anything that would allow them to take less money from you. Never.
Delfuego
04-13-2010, 11:25
We are still paying the "Coors Field Tax". This tax was for the building of Coors Field. Not the Coors Field + Invesco Field + indefinite additional use tax. Once they put a new tax on the books they will never let it expire, they will only find new ways to spend the revenue. I think my grand kids will be paying a "Coors Field Tax".
I wonder if the PIF tax they added to everything at Colorado Mills when it first opened is still in effect. It was supposed to expire after two years I think.
GreenScoutII
04-13-2010, 11:33
Legalizing weed isn't going to have a significant change on the amount of people that use it, in my opinion.
The government will NEVER do anything that would allow them to take less money from you. Never.
Yep, you're right. Tobacco is leagal and freely available but most people don't smoke. Same deal with booze. Most folks drink in moderation.
Delfuego
04-13-2010, 11:38
Expiring taxes..... [ROFL1]
You made my morning! They will never let that happen, at least not in experience.
Expiring taxes..... [ROFL1]
You made my morning! They will never let that happen, at least not in experience.
You forgot TABOR. It has to expire. Then they will start charging a "fee" that we don't have to vote on. No new taxes just new fees.
No response from ATF today. I will call them first thing in the am to get a definitive answer on this.
(Never done pot or anything else in my life)
Nice Job...not too many people that can make that claim
Just got off the phone with ATF and here is their response:
As the ATF is a federal agency and the ATF Form 4473 is a federal form, question 11e (the one about marijuana) is based upon federal law. As we interpreted, possessing a state issued MM card does not make you a lawful user according to the federal govt, therefore you must answer "YES" to that question or commit a felony. They can not deny you from owning a firearm, just purchase from a licensed dealer. Posession while under the influence is still the responsibility of the state to control. There is no system in place that allows ATF to check if you have purchased a firearm while in posession of a MM card however that responsibility may fall on the state (CBI). According to CBI, they currently have no system (yet) to determine if the person has a MM card or not unless it is documented in a court case.
Bottom line: If you have a MM card, you could get away with purchasing from a licensed dealer but you are commiting a felony in the process that, in the future, could be traced back to you.
I see this as another liberal tactic: "Want to smoke? give up your guns then!" I refuse to give up my firearms so there is no smoke for me......
That's exactly the answer I expected from the ATF. Good luck proving that you committed a felony if you don't have any evidence of pot in your system. Of course I realize that in reality, there just aren't very many people who actually have a MM card and don't actually use MJ, but the way that they state how if you have a card and check "no" than you WILL be committing a felony irks me.
funkfool
04-14-2010, 11:32
...the way that they state how if you have a card and check "no" than you WILL be committing a felony irks me.
Sounds JUST LIKE the FED.
New FED slogan:
"The Federal Government - where stupid is policy."
[Rant1]
Delfuego
04-14-2010, 12:06
coloccw,
Thanks for all the good work. I know that talking on the phone with any gov't agency is a major pain in the ass. You must be a patient person with a good speakerphone.
I see this as another liberal tactic: "Want to smoke? give up your guns then!"
Personally I do not believe in the "Liberal Bogeyman". I think this is more of a contention issue with the State v Federal laws, the specific wording of the application and the fact that the Form 4473 predates the MM laws.
Yeah thanks for dealing with ATF when you didn't have to coloccw.
Well, I can't claim to be a pure as the wind driven snow. I did try it once in my yute. Can't recall that it did anything for me, Heck, I don't even think I got the munchies from it.
That said, I say Legalize it, what do I care. not going to make me want to go out and smoke it.
I will say also, I worked with a guy 30 years ago that was, shall we say a recreational user. Saw him about a year ago, now I won't say thay he has anymore brain damage that the recreational alcohol users that I knew from the time. But, dang, He had more gaps in his memory from that time, it really was kind of scarey...
When I worked in the restaurant industry as my first job, EVERYBODY got high.
I figured they got high on the weekends, or maybe during the week. I once asked one of the waitresses how often she smokes, and she said "Ummm, probably between 10 and 15 times a day."
I was totally blown away. Some people that get high, are high CONSTANTLY while they are awake. Those are the kind of people that you can't tell when they are high, because they are always taking a hit here and there and you don't know them any other way. I was amazed that someone could smoke that much. I was like 15 and those were all the "adults" I had around me in my work environment. I was one of the few kids that didn't get into the race scene that was blowing up at the time. Glad I made it out of there mostly uninfluenced.
Remember, the fed govt does not consider marijuana a legal drug, therefore having a prescription makes you an unlawful user and/or addicted to it. The fed govt guarantees your right to firearms, not the states. If they say medical marijuana card= no gun purchase: they can. No one is denying their right to self defense, just the purchase of a firearm through a licensed dealer.
Not entirely accurate: Colorado's constitution (as well as many other states') explicitly guarantees your right to keep and bear arms.
http://www.michie.com/colorado/lpext.dll?f=FifLink&t=document-frame.htm&l=query&iid=47193a17.3692cfc9.0.0&q=%5BGroup%20%27coc%20artII-13%27%5D
Delfuego
04-14-2010, 19:00
Not entirely accurate: Colorado's constitution (as well as many other states') explicitly guarantees your right to keep and bear arms.
Yes, but does it guarantee the right to purchase or transfer arms? All Colorado FFL's require this paperwork to purchase or release a firearm. They are forced to adhere to the federal laws that govern their business.
It an Ipso Facto situation. It may not be legal by state law, but that doesn't seem to matter.
scratchy
04-15-2010, 20:52
.... The fed govt guarantees your right to firearms, not the states. If they say medical marijuana card= no gun purchase: they can. No one is denying their right to self defense, just the purchase of a firearm through a licensed dealer.
I hate to pick nits here but the Fed Gov does not guarantee anything at all. The constitution places limits on the government. We've all just lost sight of that little issue.
I hate to pick nits here but the Fed Gov does not guarantee anything at all. The constitution places limits on the government. We've all just lost sight of that little issue.
Sorry about the confusin there....the constitution guarantees the right, the fed govt guarantes taxes.
There was a post recenty by a member who stated something about "Two list you shouldn't be on at the same time" kind of thing...
Anyway - there ARE Consequences.
And HEEEERRRREEEE they are:
http://thebroadside.freedomblogging.com/2010/04/01/drugs-guns/
Drugs & Guns (http://thebroadside.freedomblogging.com/2010/04/01/drugs-guns/)
April 1st, 2010, 8:19 pm
posted by Seth Richardson (http://thebroadside.freedomblogging.com/author/sethr/)
Unintended consequences of medical marijuana and federal gun laws create a conundrum.
By Seth Richardson
Steve Sarich fought his way free of a home invasion robbery, nearly killing an armed intruder in the process, by exercising his right to keep and bear arms. But Sarich no longer has that right, according to Washington state’s King County Sheriff’s Office, merely because Sarich is also a lawful medical marijuana user. Sarich, a law-abiding citizen, did nothing more than defend himself, but now he potentially faces 10 years in federal prison and a huge fine.
After police seized his firearms as evidence in the home invasion, Sarich tried to buy a shotgun and pistol to replace them, only to find the purchase denied because he failed the state’s background check. Investigators performing the background check searched the medical marijuana patient registry as a part of the check, and found Sarich’s name on the list. The gun purchase was denied because his registration as a medical marijuana user identified him as an “unlawful user” of a controlled substance because marijuana is illegal under federal law, even if not under state law.
But worse than the denial of his purchase are the federal charges he could face for falsifying the federal Form 4473, which must be filled out whenever someone purchases a firearm from a dealer. One of the questions on the form asks “are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic or any other controlled substance?” Falsifying an answer to any question on the form can bring 10 years in federal prison and a $250,000 fine. Answering that question honestly will prevent the sale from proceeding, and the dealer is prohibited from transferring the firearm to the buyer.
The authority of the federal government to infringe on the right to keep and bear arms when it comes to illegal narcotics use has been thoroughly litigated, and the courts have upheld the restrictions of 18 USC 922 regularly as applied to criminal drug addicts. But never before has this question been presented in the context of drug use that is legal under state law, but not under federal law.
For other types of drugs, like narcotics, the restriction in the law includes “unlawfully” and “addicted to” any controlled substance, which includes addictions to otherwise lawful narcotic prescribed for medical conditions. The intent is to prohibit the transfer of firearms to people who have narcotics addictions that might result in misuse of the firearm.
But marijuana is treated differently, and no addiction is required, all that is required is that you “use” it, and that the use is unlawful. According to federal authorities, there are no lawful uses for marijuana, period, so no user of marijuana can buy a gun, period. Moreover, simple possession of a firearm along with illegal drugs, including any amount of marijuana, is an automatic five year federal prison sentence.
The answer to the Form 4473 question is ambiguous when it comes to Colorado residents, because our state Constitution makes possession and use of medical marijuana lawful. Therefore, the question arises if one can answer the question truthfully by saying “no” to the question “are you an unlawful user…”
The question does not ask which law one might be violating, and the question of the supremacy of federal anti-narcotics laws over state Constitutions is an unanswered one. Certainly Sarich, if charged, should argue that he answered honestly according to his state’s laws, however unlikely he is to prevail in federal court using such a defense. But the larger question of Federalism, the power of the states to regulate commerce in firearms and medicine that does not cross state lines, remains unresolved, and one of the most important questions of our age.
Upon which law are citizens permitted to rely? In Colorado, there is an explicit statute, based on a common law principle, that a citizen may not be held criminally liable for violating a law when a state official tasked with interpreting that law says that the conduct involved does not violate the law. This reliance on the official acts of the state arguably extends to amendments to the state Constitution, which is the fundamental, organic law of the state, and should exempt people who act in obedience to it from criminal prosecution.
But this brings up questions of state sovereignty and federal power. When considering such issues, we should ask who is better suited to regulate individual conduct and medical practice? The states, or the central government?
Should a person’s fundamental, individual Supreme Court approved 2nd Amendment rights be infringed by the federal government when the legality of the conduct is expressly affirmed by a state Constitution? Should otherwise law-abiding medical marijuana patients be denied their right and their ability to be armed for self defense, or duck hunting for that matter, based on a judgment by federal bureaucrats that using marijuana is socially undesirable? Does the desire of the federal government to suppress illegal marijuana use constitute a compelling need to disarm legal medical marijuana users? Is the existing regulation the minimum necessary regulation that will achieve the legitimate governmental purpose of preventing criminal users of marijuana from obtaining firearms without unduly infringing on the gun rights of medical marijuana users acting in accord with state law? Arguably not.
More importantly, should state authorities conducting background checks for firearms purchases be permitted to access medical marijuana registries as a matter of state policy, or should the states interfere with potential federal abuses by refusing to allow either state or federal law enforcement to access medical marijuana registry information?
Would Steve Sarich have survived the initial home invasion if he had obeyed the law and disposed of his firearms as soon as he became a lawful medical marijuana user, as federal law requires? Would that have been a fair and just result?
Illegal drug use aside, these questions must be resolved quickly, because millions of law-abiding medical marijuana users nationwide are being wrongfully disarmed and subjected to the threat of federal prison merely for treating their illness according to their state’s laws.
This is yet another example of the tension between state laws and federal laws surrounding medicinal marijuana, and why it needs to be resolved authoritatively by amendment to the U.S. Constitution. Far easier, and more quickly accomplished would be a simple revision to 18 USC 922 adding a provision that use of medical marijuana in accordance with state law shall not be considered “unlawful use” as applied to federal gun control regulations. This could be proposed in Congress as the “Medical Marijuana Patient Gun Owner’s Protection Act” in a few days, and passed in a few weeks, if the will of the People demanded it.
Medical marijuana, along with mandatory health insurance purchase are likely to be the genesis of a test of Federalism and a final determination of whether the federal government is a limited government of enumerated powers and a creature of the states, or if it is a plenary general government that has arrogated all power and control to itself.
And that determination will reveal whether we still live in a Constitutional Republic or whether we now suffer under tyranny. The answer to this question will dictate the necessary response of the People, who have both the power and the authority to revoke any and all authorities they have granted to the federal government, at their will, and return to governance by consent, not by fiat.
What would make you think this is "Unintended"???
M2MG
What would make you think this is "Unintended"???
M2MG
not unintended at all, just another way to keep people from something if they want something else.
you want to smoke tobacco...you will pay taxes out the ass.
you want to drive a big 4x4, you will pay taxes and fees out the ass
you want to smoke weed, you can't own guns
you want to keep whatever public education is left, you are going to have to pay more taxes.
it never ends.[Bang]
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