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Colorado Marijuana Law and Federal Form 4473

Discussion in 'Legal' started by bhk, Nov 7, 2012.

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  1. bhk

    bhk Member

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    Now what? If one chooses to legally smoke marijuana in Colorado (by state law), how can you possible answer 'no' on question 'e' when the drug is against federal law. If you answer 'no,' you are committing a felony for lying. If you answer 'yes,' you will be denied. This doesn't effect me at all, but I find the situation interesting.
     
  2. mljdeckard

    mljdeckard Member

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    You can't.
     
  3. smalls

    smalls Member

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    If it's legal for you to smoke marijuana by state law, it's still illegal for you to own guns by federal law.
     
  4. NavyLCDR

    NavyLCDR member

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    Marijuana will be legal in Washington state now too. It does definitely open a can of worms.

    If you know your next door neighbor uses marijuana legal at the state level, it is still illegal for you (private party) or an FFL to furnish them with a firearm according to 18 USC 922 (d).

    The next door neighbor is prohibited from possessing their firearms according to 18 USC 922 (g).

    Even if a person grows their marijuana for their own use, legal according to state law, the US Supreme Court has ruled that the Federal government can still regulate it under the Commerce Clause in Wickard v. Filburn.
     
  5. Frank Ettin

    Frank Ettin Moderator

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    A post is gone. The lesson is that encouraging illegal conduct, or even hinting that's it can be okay if you're not caught, is never acceptable here. (A post in response is gone only because it became irrelevant.)
     
  6. MIL-DOT

    MIL-DOT member

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    This is a very interesting question.Will the fed look the other way on the marijuana laws, but then come down hard on pot smoking gun purchasers? Will it ignore both laws? Will the fed sue the two states for violating federal law like they do against states that attempt to pass restrictions on illegal immigrants?
    (Oh wait, I guess I already know the answer to that last one :cool:.)
     
  7. pseudonymity

    pseudonymity Member

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    Why does state law make any difference? The question on the 4473 asks if you are an unlawful user, which in this case would still apply to anybody in the US, since there is a federal law banning possession.

    When a state repeals a law that does not nullify the existing federal law. So in Colorado now you can not be charged with a criminal offense for cannabis possession in a state court, but you certainly can be charged in a federal court with a federal offense that happened in Colorado.

    The states do not have to line up their criminal offenses with federal law, but if they do not match up, it does not mean that federal laws do not apply in that state.
     
  8. k_dawg

    k_dawg Member

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    It will be exploited to achieve 'gun control by other means'.
     
  9. Carl N. Brown

    Carl N. Brown Member

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    OK, did any state ever try to pass a state law legalizing alcohol during prohibition? It really took repeal of the federal Volstead Act and a constitution amendment overridding the prohibition amendment.

    US Constitution Article VI
    State laws cannot supercede federal law. To legalize marijuana, the federal law would have to be changed. The states are just setting pot smokers who are also gun smokes up for a federal fall.

    According to ATF Open Letter to all Federal Firearms License holders (gun dealers), 26 Sep 2011:

    "During a firearms transaction, a potential transferee may advise you that he or she is a user of medical marijuana, or present a medical marijuana card as identification or proof of residency. As you know, Federal Law, 18 U.S.C. § 922(g)(3), prohibits any person who is an "unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802))" from shipping, transporting, receiving or possessing firearms or ammunition. Marijuana is listed in the Controlled Substances Act as a Schedule I controlled substance, and there are no exceptions in Federal law for marijuana purportedly used for medicinal purposes, even if such use is sanctioned by State law. ....any person who uses or is addicted to marijuana, regardless of whether his or her State has passed legislation authorizing marijuana for medicinal purposes, is an unlawful user of or addicted to a controlled substance, and is prohibited by Federal law from possessing firearms or ammunition. ... Further, if you are aware that the potential transferee is in possession of a card authorizing the possession and use of marijuana under State law, then you have "reasonable cause to believe" that the person is an unlawful user of a controlled substance. ...."

    Signed by Arthur Herbert, Assitant Director, Enforcement Programs and Services.

    Possession of firearms or ammunition by a holder of a medical marijuana card, or by a person who is simply a user of marijuana w/o a medical MJ card, is a federal firearms felony, as is any attempt to purchase firearms or ammunition.
     
  10. mljdeckard

    mljdeckard Member

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    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.

    4473 is a federal form. The pot legalization is a state law. It is no more negated by it than I am able to go to CO as a soldier, use pot, and use state law as a defense against UCMJ.
     
  11. Frank Ettin

    Frank Ettin Moderator

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    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):

    [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":

    [6] Furthermore, the regulation provides:

    [7] The regulation further provides that (emphasis added):

    [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.
     
  12. 9mmforMe

    9mmforMe Member

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    This is laughable...alcohol is one of the most pernicious drugs available in the world and marijuana is considered a schedule I drug...what a joke.
     
  13. mljdeckard

    mljdeckard Member

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    Many laws are laughable. They are still laws.
     
  14. deadin

    deadin Member

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    Remember to laugh when doing the "perp walk".
     
  15. Rail Driver

    Rail Driver Member

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    So this brings to mind a question - When will they start requiring a drug test along with the background check?

    When they start requiring drug tests as a part of the background check to acquire a firearm, will we accept it or finally wake up and do something significant to safeguard our rights? (including the 2nd and 4th Amendment rights that would be infringed by such a requirement)
     
  16. Frank Ettin

    Frank Ettin Moderator

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    Welcome to real life. If you think that's a bad idea, get politically active and try to change things.

    Pretty idle speculation. We can cross that bridge when someone makes a serious suggestion along those lines.
     
  17. X-Rap

    X-Rap Member

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    We will now become a smoking destination as far as tourism but will run off any serious industry that doesn't want to contend with the additional headache of trying to decipher laws and regulations that aren't even in effect yet.
    I thought we had lost our minds with the medical mary jane and the unintended consequences that cam along with it, now I am certain that we are insane to amend our state constitution like this.
    Colorado was cool when it was red.
     
  18. thefish

    thefish Member

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    I would venture to say form 4473 will be slightly reworded. The interesting thing is that if you read line e to the letter if the law, anyone who uses habitually tobacco would not be allowed to purchase. I guess it's all in how you interpret the definitions.

    Also remember that just because amendment 16 passed, does not mean it is the end all be all. The state and local municipalities can still repeal it at any time.
     
  19. oneounceload

    oneounceload member

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    For all the folks who rail against drinking and shooting, this should be a no brainer - want to get stoned? no guns - make your choice as to what is important to you
     
  20. Frank Ettin

    Frank Ettin Moderator

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    Nope.

    The statute (18 USC 922(g)(3)) reads:

    And 21 USC 802(6) defines "controlled substance" as follows (emphasis added):
     
  21. Rail Driver

    Rail Driver Member

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    Most people who "rail against drinking and shooting" are saying that it's wrong to shoot or handle firearms when under the influence of alcohol, not that it's wrong to be a gun owner if you drink at all.

    If people could live their own lives instead of trying to live everybody else's life, we'd have a lot fewer stupid laws (and lying politicians) to contend with.
     
  22. MR2Aaron

    MR2Aaron Member

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    This seems pretty obvious, to me.

    Possession of marijuana remains illegal at the federal level. The feds don't care if the states make it legal at their level or not; the constitution is explicit in stating they can't override the federal government.

    So, if you're a user of marijuana, regardless of whether the state you live in says it's illegal or not, you're an unlawful user of marijuana as far as the federal government is concerned, and a 4473 is a federally mandated form.

    In other words, nothing changed as far as gun ownership is concerned.
     
  23. Onward Allusion

    Onward Allusion Member

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    Yup. It is a no brainer via fewer and fewer brain cells from use.

    It brings about an interesting question, though. It's pretty easy to determine whether someone is carrying or driving under the influence of alcohol through a Breathalyzer. Short of a blood test, how would it be determined whether someone is carrying or even driving under the influence of marijuana if it is legal in the State.

    BTW, yeah I'm one of those folks who think alcohol and gun use don't mix.
     
  24. SSN Vet

    SSN Vet Member

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    I can tell you this much for sure.... State legalization puts employers in a catch22 wrt. No drug use policies.

    I'll give Oregon 3 months until an employer, who fires an employee for popping + on a wiz quiz, to get sued.

    Not a state where I would consider opening up my next manufacturing plant if I was a corporate boss.
     
  25. Rail Driver

    Rail Driver Member

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    How do you figure? Can't (successfully) sue an employer for firing an employee that comes to work drunk, why would MJ be any different?
     
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