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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. thefish

    thefish Member

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    @ frank (sorry, can't figure out how to include all the quotes)

    Line e. reads Are you an unlawful user of, or addicted to, marijuana, or any depressant, stimulant, narcotic drug, or any other controlled substance?

    or: Are you an unlawful user of, or addicted to, marijuana, or any depressant, stimulant, narcotic drug, or any other controlled substance?

    FDA catagorizes nicotine as a stimulant.

    Not trying to start an argument or derail, just curious.

    It seems to me it's all in how the wording is intrepeted.
     
  2. Swing

    Swing Member

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    Somewhat related to the original question, is this ATF Open Letter concerning "Medical Marijuana" that exists in some states. I'd imagine it would apply to the new legislation in Washington state and Colorado.
     
    Last edited: Nov 7, 2012
  3. thefish

    thefish Member

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    OOh, figured out the quote button.

    Not to get this completely off track, but that exactally is the slippery slope this is on. I've been hearing about this for quite some time (living in CO), and the arguement will soon become, "blood tests are an invasion of my privacy", and "a habitual smoker will have high levels of THC in their system regardless of if they recently used". The whoel problem with this new amendmant, unlike alcohol, is that is considerably more difficult to determine if someone is "under the influence" while driving, or whatever.

    It will be intresting to see if the state or local governments realize the problems it will create and actually do something about it, instead of just seeing the $$ of the tax revenue.
     
  4. thefish

    thefish Member

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    I think all that open letter was doing was "reminding" dealers that MJ is still ILLEGAL, regardless of your state law.

    It is kind of bizzare to think that something can be "legal" at a state level, but Illegal at a federal level.

    Curious, is this the first case of this? I can't think of any other situation off the top of my head.
     
  5. Frank Ettin

    Frank Ettin Moderator

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    The secret is fully revealed here.

    [Well, I see you got it, so for anyone else who might be interested.]

    It will have to be interpreted in accordance with the controlling statute (18 USC 922(g)(3) I cited and quoted in post 20. That is the statute that makes the use of a controlled substance relevant under federal law to the transfer of a gun.

    So the term "controlled substance" in the question on the 4473 must be interpreted in accordance with 18 USC 922(g)(3). And 18 USC 922(g)(3) refers to the definitions under the Controlled Substances Act, which I also cited and quoted in post 20. And thus the term "controlled substance" in the question on the 4473 does not include alcohol or tobacco since they are not controlled substances as defined in the Controlled Substances Act.
     
  6. john wall

    john wall Member

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    If you are a FFL, have a carry permit, Armed Guard, LEO, and get caught with weed, you are in trouble.

    Answer yes on the form? The above mentioned licenses and jobs go away.

    It is indeed a can of worms.

    If you do guns, stay away from weed until Federal Law is changed.

    I sort of see this coming because of tax revenue. If the cigarette industries started selling pot, Federal revenues would be huge.

    Personally, I think if you have to get impaired to make it through the day, you have serious issues to fix.
     
  7. silvermane_1

    silvermane_1 Member

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    yep. MJ is legal in WA state too, feds need to get idea of getting MJ off the controlled substance act, and tax it like hard alcohol and tobacco.
     
  8. mljdeckard

    mljdeckard Member

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    Remember as well, that the governors of these states have not yet weighed in on whether or not they think that accepting the possible repercussions from these laws is worth the trouble. Don't get your bongs out yet.
     
  9. X-Rap

    X-Rap Member

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    All I know is Colorado keeps loosing appeal to me, we are in a bad down real estate market but when/if it recovers I am divesting in a hurry.
    My problem is that a couple of my other options are just as or more left than here. I'm checking out some options this winter.
     
  10. BSA1

    BSA1 Member

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    I don't intend to take the O.P.s question to far off track but as a retired government bureaucrat it is very important that when filling out government applications/documents you answer the question exactly as they are asked.

    For example Form 4473 question e asks;

    Are you an unlawful user of, or addicted to, marijuana, or any depressant, stimulant, or narcotic drug, or any other controlled substance?

    Prior to answering this question you should consult the definition listed in the Important Notices included at the bottom of the application;

    IMPORTANT NOTICES

    6. The transferee of a firearm should be familiar with 18 U.S.C. § 922. Generally, § 922 prohibits the shipment, transportation, receipt, or possession in or affecting interstate commerce of a firearm by one who: has been convicted of a misdemeanor crime of domestic violence; has been convicted of a felony, or any other crime, punishable by imprisonment for a term exceeding one year (this does not include State misdemeanors punishable by imprisonment of two years or less); is a fugitive from justice;

    is an unlawful user of, or addicted to, marijuana or any depressant,
    stimulant, or narcotic drug, or any other controlled substance;


    has been adjudicated mentally defective or has been committed to a mental institution;has been discharged from the Armed Forces under dishonorable conditions; has renounced his or her U.S. citizenship; is an alien illegally in the United States or a nonimmigrant alien; or is subject to certain restraining orders. Furthermore, section 922 prohibits the shipment, transportation, or receipt in or affecting interstate commerce of a firearm by one who is under indictment or information for a felony, or any other crime, punishable by imprisonment for a term exceeding one year.

    Next I consulted Dictionary.com for the definition of is;

    Definitions;

    Is verb 1. 3rd person singular present indicative of be. Dictionary.com

    Be verb and auxiliary verb, present singular 1st person am. Dictionary.com

    Present adjective 1. being, existing, or occurring at this time or now; current: the present ruler.

    2. at this time; at hand; immediate: articles for present use.

    There is nothing in the question that asks about past or future intention use of illegal drugs. So that only leaves us with the definition of IS for government purposes. Notice there is no time limit in any of the above definitions or a definition by the BATF as to how far in the past the term IS applies to. This is a subjective decision by the applicant and can be answered no by someone depending on when their last usage was. For example if the last time I used pot was two day or two weeks or two years ago, I am not in possesion of illegal and I am not under the influence then I am not a present user of illegal drugs.

    Nor is this issue just limited to use of illegal drugs. This question comes up regularly about mental health treatment and past criminal convictions.

    I await for my argument to be demolished by the legal counselors.
     
    Last edited: Nov 8, 2012
  11. Frank Ettin

    Frank Ettin Moderator

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    With regard to being an unlawful user of a controlled substance for the purposes of the Gun Control Act, in posts 11 and 20 I covered the applicable definitions in the statutes and regulations.

    If anyone is interested in betting five years of his life in federal prison (and lifetime loss of gun rights) on your non-lawyer opinion being bought by a federal judge, he is welcome to do so.
     
  12. Busyhands94

    Busyhands94 Member

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    Hmm, interesting thread. I heard about them legalizing it in Colorado and Washington, and the first thing that popped into my mind was how it would effect those that partake and wish to purchase a gun.

    Now... I'm not advocating the use of dope for recreation. But I'd rather have everyone on the range high, instead of drunk. If they were drunk they'd be shooting eachother, if they were high worst case scenario is they'd try and eat the bullets.

    That being said, you should not drive or handle firearms under the influence of anything. And even though it doesn't effect me I hope that this gets resolved and pot is no longer federally regulated so that adults who decide they want to use it won't be thrown in jail on our dime.
    Just my personal thoughts in this matter.
     
  13. Cosmoline

    Cosmoline Member

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    Or just go back to black powder ML only until the feds finally give up the fight and start mining pot for tax revenue. But if you go down that road, you can never buy a firearm again until federal law is changed or the ATF amends its rules. Could be a very long wait. And of course the feds can still arrest you and seize all your property including smoke poles (ha ha) for simply having a joint in your pocket. Personally I'm not in that much need of a toke! The wise choice is to not break federal law either by having controlled substances or lying on the form.
     
  14. X-Rap

    X-Rap Member

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    The current problem with legalized pot be it medical or recreational seems to be setting a limit like BAC is used with intoxication and alcohol.
    The word I get is that LE is pretty much hog tied on making arrests stick when they suspect someone is under the influence of MM because there is no statutory level.
    The new Colorado amendment purports to treat Pot like Alcohol, I don't know if that meaning has been decided but isn't it ironic that one can't smoke a tobacco in a bar or at the ball field but they may very well be able to light up a joint. Logic tells me that if kids are influenced to drink by such exposure they will certainly be with overt pot use.
    In some ways I wonder if this is just another back door move at gun control, make every gun owner who smoke weed a felon or disarmed, both by their own choice. The youth are the ones who will fall for it the hardest.
     
  15. Owen Sparks

    Owen Sparks member

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    Doesn't residue from smoking pot stay in the blood stream for something like a month?

    Should someone be treated as if they are drunk just because they had drinks sometime within the last month?

    This is the problem with drug tests. They don't determine sobriety, only the fact that there is residue in your system. This would be like the police charging someone with drunk driving because they find an empty whisky bottle in his trash. There is no way to prove that he was drunk behind the wheel, on the job or at the range.
     
  16. mljdeckard

    mljdeckard Member

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    THC is fat soluble. It stays in your body fat for UP TO 30 days. If you have less body fat, it will be less. It is theoretically possible to have an infusion to the bloodstream as you work off fat, but I have never heard of anyone actually getting a buzz from it.
     
  17. hermannr

    hermannr Member

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    There has already been a case go up through the OR state and Federal courts as concerns a woman and her medical MJ and her CHL, The Medical MJ user won, at every level state and federal.

    ...The sheriff did not want to issue her a CHL (Oregon license to carry) because she was a medical MJ user....he was over-ruled by the courts.

    I think this will finally generate a definative court case as we now have 2 states that say it is absolutely legal, by state law.

    Now, all you lawyers out there....why did alcohol prohibition require a US constitutional amendment, but this "drug" verson of the same "prohibition" not need a constitutional amendment??? Can you answer that? Fed power grab that has never been fully chalanged?
     
  18. Owen Sparks

    Owen Sparks member

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    I have weekly trash pickup so beer cans stay in my trash for up to a week.
    That does not mean I am drunk now. It just means that I had a beer sometime within the last week. Urine testing for THC works the same general way. They can only prove that you have smoked pot in the recent past, not that you were ever high at work, behind the wheel or on the range.
     
  19. Frank Ettin

    Frank Ettin Moderator

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    Do not spread misinformation.

    She won in state court solely on state law grounds. The U. S. Supreme Court declined to hear the case. The question was never considered under federal law, nor was the question ever considered by a federal court.

    Whatever. That red herring is a non-starter. See Gonzales v. Raich, 545 U.S. 1 (2005).

    But if you want to challenge the Controlled Substances Act or the Gun Control Act, have at it. The courts are open for business.
     
  20. winterhorse290

    winterhorse290 Member

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    the Commerce Clause has been used to control the states and can mean anything the fed wants it to mean. but the backdoor gun control thing has got me thinking.
     
  21. Owen Sparks

    Owen Sparks member

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    It took a constitutional amendmant to give the federal government the power to prohibit alcohol. How are drugs and guns any different?
     
  22. pseudonymity

    pseudonymity Member

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    Actually they are not all that different, and regulations on them are kind of related. There were federal regulations on some drugs as early as 1906, but since alcohol and tobacco were (and still are) supported by monied interests, there is very little political will to restrict them.

    Historically there is actually a lot of racism behind both drug and gun restrictions, some are covered by Justice Thomas in his concurring opinion in McDonald v. Chicago.

    I do wonder if we could have ever had anything like the NFA if it was not for alcohol prohibition - prohibition fueled "gangster" activity, and some high profile murders by gangsters helped push the NFA through.
     
  23. Zoogster

    Zoogster Member

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    I imagine it will not go unnoticed by the drug cartels either. They are spending millions and fighting a war in Mexico to bring drugs through Mexico and to the United States. Marijuana while bulkier, and not as profitable per smuggled quantity, is also the easiest product to offload because it has the largest most widespread market. This makes it the cash cow.

    Legalization is going to seriously cut profits. Billions are estimated to be lost already.

    I wonder if they will take an active role to stop legalization, and put pressure where they can to reverse it.






    BSA1 said:

    I seem to recall an ATF letter or statement that defined what they considered an 'addict' of marijuana. It was like so many times per year, or X number of times in a few years.
    It was some relatively small number too, like used it more than 3x in one year or 5x in a few years.
    A definition that would for example make everyone that drinks any alcohol an addict of alcohol (but it didn't cover alcohol, just marijuana.)
    Does anyone have that definition or letter?'
    That would in fact cover a pretty extensive time period.



    I deal with this issue all the time. As someone that likes to do a lot of outdoor activities in California and often like to bring a firearm when feasible. There is many people in California that smoke marijuana. Some just at the end of the day or on occasion.
    Typically it is a non issue because in California it is either an infraction (speeding ticket) or legal if they got a prescription that is excessively easy to get.
    The feds also don't prosecute for mere possession generally so it really is just the state law that impacts most people.
    Yet when it comes to firearms it suddenly turns from an infraction to a major crime.

    It becomes a limiting factor when I don't even want to go on a trip with certain people or have them in a vehicle with me because they smoke a little weed at the campfire after a long day and so I know they are going to have marijuana on them.
    It is not just low lifes smoking it, although there is plenty of potheads that do it all the time wasting thier lives no differently than alcoholics. There is also many otherwise upstanding citizens in all sorts of professions.
    I know in some regions it is associated with certain types of people, but it is culturally a lot more widespread in places like California.
    In most circles in California if you get to know the people you are around well enough a percentage are using marijuana on occasion. In more professional circles it just takes longer to come out.
     
    Last edited: Nov 8, 2012
  24. Frank Ettin

    Frank Ettin Moderator

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    Nope, the regulation of alcohol under the now repealed 18th Amendment was very different from the current regulation of firearms and drugs.

    The goal of the prohibitionists was to completely eliminate the manufacture, sale, importation or exportation of alcoholic beverages anywhere and everywhere in the United States. Nothing in the Constitution could support such a broad and plenary exercise of legislative authority by the federal government. So the Constitution had to be amended to allow that.

    The 18th Amendment reads:

    In contrast, the NFA was written as a tax law, and both the Gun Control Act and the Controlled Substances Act (and related laws) were written as regulating interstate commerce. And that's why the regulation of firearms under the NFA has been sustained by courts as being within the federal government's power to tax; the regulation of firearms under the Gun Control Act has been sustained by courts as being within the federal government's power regulate interstate commerce; and the regulation of drugs under the Controlled Substances Act has been sustained as being within the federal government's power regulate interstate commerce.
     
  25. BSA1

    BSA1 Member

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    Thank you for your reply Frank. The information quoted on Post 11 is exactly what I mean when I state there is no definition of what present and how far in the past means by the BATF or more precisely what have the Federal Courts have ruled.

    Example;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;


    No definition of recent. It is a very vague, subjective term.
    ,

    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,

    Interence is the act of passing from one proposition, statement, or judgment considered as true to another whose truth is believed to follow from that of the former. It requires a subjective conclusion.

    e.g., a conviction for use or possession of a controlled substance within the past year;

    Ok present use covers within the past year,

    multiple arrests for such offenses within the past 5 years if the most recent arrest occurred within the past year;

    What is arrest? Does a citation as mention by a LEO count? But wait if it is one year then the five year rule applies???

    or persons found through a drug test to use a controlled substance unlawfully, provided that the test was administered within the past year....

    Back to the one year rule. Is it legal for a company, testing facility or doctor to release U.A. results without consent of the employee/patient unless the Government gets search warrant?

    This entire definition is Government doublespeak, well actually, really worse. If the Government considers recent usage to be within the past year then why not write a simple one line sentence saying so? I was wondering if any Federal Court has issued a decision that defined such terms as recent and present?
     
    Last edited: Nov 8, 2012
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