mljdeckard said:
All they have here is a 2 or 4 year break on federal enforcement. If they get a pres who think's it's worth the time of the .gov, they will flip the switch and the DEA will be back in the panel van and zip-tie business....
And while the feds might decide not to press the marijuana use issue for those who are using marijuana in accordance with a state medical marijuana law, that doesn't mean that they won't pursue a federal weapons charge for a marijuana user, medical marijuana law or not, found in possession of a gun.
Here's the deal:
[1] State law is irrelevant.
[2] Under federal law (the Controlled Substances Act, 21 USC 801, et seq.), marijuana is a Schedule I controlled substance which may not, therefore, be lawfully prescribed or used. Therefore,
any user of marijuana, even if legal under state law, is, under federal law, an unlawful user of a controlled substance.
[3] Under federal law, a person who is an unlawful user of a controlled substance is prohibited from possessing a gun or ammunition (18 USC 922(g)(3)). Therefore, any one who is a user of marijuana, even if legal under state law, is a prohibit person and commits a federal felony by possessing a gun or ammunition.
[4] An "unlawful user of a controlled substance" is defined in ATF regulations, in pertinent part, as follows (27 CFR 478.11, emphasis added):
....Unlawful user of ... 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....
[5]As defined, it is not necessary that one be using marijuana at a particular instant to be an unlawful user. As set out in the federal regulation defining "unlawful user":
...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...
[6] Furthermore, the regulation provides:
...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....
[7] The regulation further provides that (emphasis added):
...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...
[8] Being a prohibited person in possession of a gun or ammunition is punishable by up to five years in federal prison and/or a fine. And since it's a felony, conviction will result in a lifetime loss of gun rights.
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