Ban on Gun Sales To MJ Card Holders UPHELD - Fed Court Rules

[X-Rap]

A passport is the best ID one can carry and works everywhere so while the CA card may be a legal ID I didn't know if they all are.
Like I said, work to change the law not make another that everyone ignores.

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[danez71]

A passport is the best ID one can carry and works everywhere so while the CA card may be a legal ID I didn't know if they all are.

I don't know if its considered 'legal ID' in the sense that you meant it..... but since it is a state issued photo ID, I could see how someone could think that it is.

Like I said, work to change the law not make another that everyone ignores.

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I'm not sure what your referring to.... I don't see where you said that.

But I agree with the sentiment.

 

[RickD427]

Heyjoe,

You're right that having the card does not necessarily mean that one is a user of marijuana.

That's what this whole case was about - Just how certain must the proof of use be, before one is denied the right to acquire a firearm?

The court held that having a card was sufficient proof of use.

 

[heyjoe]

bad decision in my opinion. i dont know enough about the particulars of the people involved in the case to know whether this particular case should be appealed. ive been given quite a few prescriptions in my lifetime that for one reason or another i never filled.

 

[orionengnr]

Having a card does not necessarily mean you are using marijuana, just like having a prescription from a doctor doesnt mean you are taking the medicine prescribed or even filled the prescription.

...any more than possessing a FOID card makes you a gun owner. But when they decide to kick down doors, whose doors will be the first to fall?

I am not a cop or a lawyer, but the terms "probable cause" and "reasonably articulable suspicion" seem to apply here...

 

[hdwhit]

Having a card does not necessarily mean you are using marijuana,...

Why would you have a card and not use it?

The answer can be found in Footnote 3 of the decision:

Wilson argues that, in light of the active political movements to decriminalize the use of marijuana in some states, her stance as a non-using registry card holder allows her to express her support for marijuana legalization in a particularly meaningful way.

Why would you use the card as a form of ID?

It is not stated in the decision that Wilson presented the card as a form of ID and I see nothing in the opinion to suggest that's what happened. The opinion says:

As Wilson began to fill out Form4473, the owner of the store, Frederick Hauser, stopped her from completing Question 11.e, which asked whether Wilson was an unlawful user of a controlled substance. Hauser explained that, because (as Hauser already knew) Wilson held a marijuana registry card, Wilson was deemed an unlawful user of a controlled substance and therefore someone to whom he could not sell a firearm without jeopardizing his federal firearms license.


The decision needs to be read in its entirety in order to see the arguments that Wilson raised and the court's analysis of each of those challenges.

 

[RX-79G]

Suppose I am receiving chemo, and get a MM card. The chemo ends, marijuana is not classically addictive, and I stop using because I no longer need it for nausea.


At what point am I not "using" marijuana? The moment it clears my system, a week later?


It seems like there would be a pretty large burden put on the state to prove that anyone's past use (or intent to use) means that they were lying if they were not actively using OR addicted at the time they filled out the 4473.

Obviously, if you write "yes" on that part of the form, you're going to be denied (and you are certainly failing an intelligence test at that point), but it should be legit to check "no" without deception, despite a MM card or any prior use.

 

[Frank Ettin]

Suppose ... I no longer need it for nausea.


At what point am I not "using" marijuana?...

See 27 CFR 478.11 (emphaisis added):

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.

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).

So if you're unlucky it will be something the jury at your trial will be deciding.

 

[FL-NC]

The 4473 is a federal form required by the BATFE, a federal agency. It specifically asks if the buyer is addicted to or an unlawful user of MJ, and other named substances. MJ is illegal under federal law. Another case where these laws are so convoluted through selective enforcement that its a multi-headed beast.

 

[RX-79G]

From what Frank posted, it sounds like someone who has used, but has no intention of continuing to use MJ could answer honestly "no" on the 4473. The state could certainly attempt to convince the DA and then jurors that there was evidence that this statement was false, but it doesn't sound like the simple existence of MM card would do it.

I don't think people actively using pot should be buying or using guns, any more than I think someone who's drinking should be driving. But it certainly doesn't sound like the intent of the law or ruling is exclude past or even future users of MJ from buying a gun, or the language would be of the "Have you ever been..." variety.

Primarily, it sounds like the form 4473 drug question is to stop people dumb enough to think they could mark "yes", and to be used as a secondary charge for people arrested on drug charges or firearms charges. It is hard to imagine being charged for marking "no" unless you did something almost immediately after the sale, and someone actually noticed that you bought a gun. A fairly unlikely scenario.


It almost sounds like the women in the appeal was doing it as a test case to force MJ rights in the courts. Or she is indiscreet, or she is just a fool.

 

[hdwhit]

...it doesn't sound like the simple existence of MM card would do it.

The possession of a Medical Marijuana (MM) card creates a presumption that that person holding it intends to use of marijuana.

Seems to me the practical response is to max out your credit cards buying all the guns you're likely to want for the foreseeable future, then go get your MM card, light up, and when you have paid off your past purchases, surrender your MM card so that you can go buy more guns.

Or ... we could just acknowledge that this decision isn't the result of some gun-grabbing conspiracy and given the facts presented to it, the court got it right. People who (for whatever reason) want to (presumably) openly violate federal law (regardless of the fact their state may have changed its laws) are in violation of the law and thus, by definition, criminals, and so don't need to be running around buying guns.

 

[RX-79G]

Intending to use marijuana is not what the 4473 question asks. MM cards are annual, so just having one means about as much as having a scuba certification in terms of future intent. Or owning an "assault weapon" shows intent to kill people.

 

[danez71]

^^^^^^
..... or that having an active license to be an attorney mean's that it's reasonable to presume that you are intending to, or actively are, represent(ing) clients in court cases.

I think they got it right in the sense that states MM cards don't give them a pass on the Fed law IF they are using MM... but I think they got it wrong in the sense that having the MM card is reason enough to disqualify through presumption.

 

[Frank Ettin]

..... or that having an active license to be an attorney mean's that it's reasonable to presume that you are intending to, or actively are, represent(ing) clients in court cases...

True enough. I've maintained my status as a active member of the Bar since I retired in 2007. Although I've done a bit of consulting work, I've done so only for other lawyers; and I would not have needed to be licensed to practice to do that work. I'm not the least bit interested in doing any real work.