Colorado Marijuana Law and Federal Form 4473

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The fact that they don't do anything about it does not make it any less illegal. It is still a violation of federal law, and one can still be prosecuted for it.

If the DEA were to go after a California doctor for prescribing medical marijuana, then he might do time, he might not. However, he most likely would not lose his privilege to practice medicine in California because he was within the laws of the state.

There are many laws that are around that take a low priority to enforcing. Going after the illicit drug trade is more important to the DEA than going after states.
 
powder said:
Really. Let's use that theory to the age of consensual sexual relations: Federal vs. individual states....
Really? Since when have the feds tried to set the age of consent?

powder said:
...If Federal law were the highest law in the land, that all states HAD to abide by, there would be no "medicinal marijuana" dispensaries in 17 states today. Correct? The DEA would be just busting and locking down every single dispensary as it opened..
  1. In fact, under the Constitution, federal law is the "supreme law of the land" (Article VI, Clause 2):
    Clause 2. This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby; any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

  2. There is such a thing as "prosecutorial discretion." A prosecuting authority gets to decide when, where and how to enforce criminal laws. So a prosecuting authority, like the United States Justice Department may decide as a matter of policy to go easy on something like medical marijuana, at least under some circumstances. However, I guess you haven't been keeping up on current events; for example see --


  3. See also the fairly recent decision of the United States Supreme Court upholding federal regulation of marijuana in Gonzales v. Raich, 545 U.S. 1 (2005).
 
Individual States have the Authority to be LESS restrictive than Federal Laws, but NOT MORE restrictive.
You've got that more or less exactly backward.

The federal government has made laws which are the law of the whole land, period. Anything the feds don't directly control is subject to whatever laws the individual states make regarding those issues.

For example -- the federal NFA '34 and FOPA '86 declare that full-auto guns must be federally registered and that there cannot be any more sold into the civilian market after 1986. Some states make full auto weapons completely illegal for their citizens. Some make them subject to additional registration beyond the federal registration. Some say, as long as it is registered according to federal law, that's good enough for us. Some have "no comment."

However, in no place in the country does a state's law, or lack of laws, make it so you can own a full-auto that isn't registered with the BATFE, and/or that is newer than 1986. The federal law is universal -- a state may make the law TOUGHER, but cannot make it less restrictive than whatever the federal laws require.

Same applies to drugs, and "prohibited persons" with regard to gun ownership.
 
These states are sticking their necks out, and I am waiting to see how the federal government responds.

Ninth Amendment – Protection of rights not specifically enumerated in the Constitution.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

James Madison was concerned that enumerating various rights could "enlarge the powers delegated by the constitution." To attempt to solve this problem, Madison submitted this draft to Congress:

The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people; or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.[5]

Tenth Amendment – Powers of States and people.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The Tenth Amendment makes explicit the idea that the federal government is limited only to the powers granted in the Constitution.

States sticking their necks out? Hardly. They are traveling down the difficult round to limit Federal expansion in issues reserved for the states.
 
powder said:
...Going back to post #11, I see the first point is to state that state's laws are irrelevant? Also, within post #11 what are you referencing, when, and which is your personal opinion
  1. Yes, I've stated that with regard to guns and marijuana, state laws are irrelevant.

  2. I thought my references were clear: the Controlled Substances Act; the Gun Control Act, specifically 18 USC 922(g)(3); and ATF regulations, specifically 27 CFR 478.11. And I've explained in that post and others why state laws are irrelevant.

  3. As for my opinion, since I'm a lawyer, we can call it my professional opinion.
 
Surely there is a 10th Amendment issue here, as Congress has used various means over the centuries (mostly the "Commerce Clause") to expand what matters they have direct control over. Some states are indeed trying to push back against that. The marijuana issue is a major front of this, as are the various gun freedom laws being passed (or considered) by states like Montana which say they'll resist federal gun laws being enforced by federal officers within their state's boundaries.

However, absent a HUGE shift -- a really HUGE one ... about equivalent to the major debates that framed the Civil War -- in the way federalism works in the US, that's not going ANYWHERE. In essence, the federal government allowing (not resisting, not squelching) such a rejection by the states of federal power would reverse nearly everything about the way our government has worked for almost the last 200 years.

While it would be a much closer form of government to what the Constitution actually describes, and which almost all of the founding fathers envisioned, it is far different from anything even our grandfather's grandfathers ever lived under.
 
Yes, I've stated that with regard to guns and marijuana, state laws are irrelevant.

I thought my references were clear: the Controlled Substances Act; the Gun Control Act, specifically 18 USC 922(g)(3); and ATF regulations, specifically 27 CFR 478.11. And I've explained in that post and others why state laws are irrelevant.

As for my opinion, since I'm a lawyer, we can call it my professional opinion.

a.) For an attorney, you are unclear: your point # 1, in post #11, simply states..."State laws are irrelevant." You do NOT specify in any manner that you are referring to.

b.) You do not differentiate in your posting as to which information is your opinion, and to which is a supposed statute reference. No, you are as clear as mud in your posting per this matter. Calling yourself "a lawyer" is just as ambiguous and reckless of a term, without being more specific as to which field you are credentialed in.

Personally, I find it interesting that while we have Moderators here who are willing to offer their personal opinions as legally factual, also allow anti-Law Enforcement threads to survive and thrive. Lock this one down and/or delete it for some consistency here.
 
Justice Department spokewoman Nanda Chitre said enforcement of the federal Controlled Substances Act remained unchanged, according to an AP news item in this morning's paper ("Colorado, Washington await federal response to marijuana measure").

Marijuana legal under state law either recreationally or medicinally when federal law deems it a "controlled substance" with no accepted medical use is a crazy argument.

I don't think any lesser jurisdiction tried to legalize alcohol under federal Prohibition. Did they?

This is like the crazy argument that Phoenix ATF Group Supervisor David Voth sold to CNN/Fortune reporter Katherine Eban: that lax Arizona state gun laws kept the feds from enforcing federal law against straw purchase and dealing w/o license. Therefore, there was no deliberate gunwalking policy during Fast and Furious; their hands were tied by lax state gun law promulgated by NRA and GOP. The Democrat Minority Report, the Joint Staff Majority Report, and the Inspector General Review all point the finger of blame at Voth et 13 alia for pursuing a deliberate policy of walking guns.

State law trumping federal law does not wash with Article VI of the constitution: Law of the Land supremacy is in this order: supreme is the Constitution as amended; then federal laws in accordance with the Constitition; next treaties approved by Congress; after that state constitutions; and bottom state law. There is no way a state law can supercede a federal law that has not been declared unConstitutional by the Supreme Court.

Of course the granddaddy of the 1970 Controlled Substances Act was the 1914 Harrison Narcotics Act which is also (according to Justice MacReynolds in Miller '39) the legal underpinning of the 1934 National Firearms Act. Bringing down the marijuana prohibition might have the side effect of opening up the NFA registry to new machineguns. Or not.
 
powder said:
For an attorney, you are unclear: your point # 1, in post #11, simply states..."State laws are irrelevant." You do NOT specify in any manner that you are referring to....
You might try actually reading the first couple of sentences:
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....
If that's unclear to you in context, I'm afraid I can't help you.

powder said:
...b.) You do not differentiate in your posting as to which information is your opinion, and to which is a supposed statute reference. No, you are as clear as mud in your posting per this matter. Calling yourself "a lawyer" is just as ambiguous and reckless of a term, without being more specific as to which field you are credentialed in....
If anyone has trouble understanding my post and would like to ask some questions, he's welcome to do so. As to what field I'm credentialed in, in California, other than a few recognized specialties, it's just a matter of being a member of the Bar, which I have been for more than 35 years. And this is all real simple, straightforward, basic law stuff.

Anyway, I've been around here for a few years, and folks pretty much know my background and the sort of information I can provide.
 
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.
 
I foresee the Feds pursuing enforcment of it's marijuana ban on two fronts both of which may be very effective;

1. Withholding of Federal money to the States on several fronts; loss of Federal money to law enforcemnt agencies, loss of funding based on commerce clause, loss of Federal funding for Medicare/Medicaid for patients using pot.

2. Well publicized jack-booted raids on on small-businesses that sell pot, persons/businesses that grow pot and citizens for possession of pot. This heavy handed enforcement will be designed for maximium publicity to intimidate citizens and to drive use of pot underground.

This has NOTHING to do with the harmful effects of pot. It has EVERYTHING to do with the Federal Government retaining power over the states and individual citizen.
 
As I live in S.Or. I have been reading this thread with some interest. If as you say that Fed. Law trump's State Law ,then the states anti militia law's concerning the militia would be as null & void as the medical MJ laws. Or am I missing something? Mr. E. Could you respond to this please? I would also like to hear what others think about this?
 
If as you say that Fed. Law trump's State Law ,then the states anti militia law's concerning the militia would be as null & void as the medical MJ laws.
What state's anti-militia laws? You're going to have to be very specific as to which state laws you feel violate which federal laws.

We're also going to have to be very careful to keep this related to guns and the RKBA. "Militia" issues tend to get off-topic for THR pretty fast.
 
What state's anti-militia laws? You're going to have to be very specific as to which state laws you feel violate which federal laws.

We're also going to have to be very careful to keep this related to guns and the RKBA. "Militia" issues tend to get off-topic for THR pretty fast.
Florida has some very restrictive anti-militia laws which I've wondered about. Firearms are expressly mentioned in those laws. (will edit the post to include citation as soon as I find it)
The laws address intent, which (I believe) is the only reason they were passed, however intent is difficult to prove or disprove.

Florida Statute said:
790.29 Paramilitary training; teaching or participation prohibited.—
(1) This act shall be known and may be cited as the “State Antiparamilitary Training Act.”
(2) As used in this section, the term “civil disorder” means a public disturbance involving acts of violence by an assemblage of three or more persons, which disturbance causes an immediate danger of, or results in, damage or injury to the property or person of any other individual within the United States.
(3)(a) Whoever teaches or demonstrates to any other person the use, application, or making of any firearm, destructive device, or technique capable of causing injury or death to persons, knowing or having reason to know or intending that the same will be unlawfully employed for use in, or in furtherance of, a civil disorder within the United States, is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(b) Whoever assembles with one or more persons for the purpose of training with, practicing with, or being instructed in the use of any firearm, destructive device, or technique capable of causing injury or death to persons, intending to unlawfully employ the same for use in, or in furtherance of, a civil disorder within the United States, is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(4) Nothing contained in this section shall be construed to prohibit any act of a law enforcement officer which is performed in connection with the lawful performance of his or her official duties or to prohibit the training or teaching of the use of weapons to be used for hunting, recreation, competition, self-defense or the protection of one’s person or property, or other lawful use.
History.—s. 1, ch. 82-5; s. 164, ch. 83-216; s. 1220, ch. 97-102.
 
I don't want this to go into or about militia. I was informed that militia groups are illegal to start &they were not supposed to carry firearms at public meetings. ( If this not case, please let me know. I gave the opinion that would be triumphed by fed. law) .I just would like to know the truth.
 
I don't want this to go into or about militia. I was informed that militia groups are illegal to start &they were not supposed to carry firearms at public meetings. ( If this not case, please let me know. I gave the opinion that would be triumphed by fed. law) .I just would like to know the truth.
I only replied about it because I think it's relevant to the discussion - If federal law always trumps state law, how can these anti-training/anti-militia laws be allowed, but MMJ laws are being fought by a government that blatantly refuses to enforce (or follow) so many of their own laws?
 
These states are sticking their necks out, and I am waiting to see how the federal government responds.
Ninth Amendment – Protection of rights not specifically enumerated in the Constitution.

The only problem is that this is not an issue of rights. Marijuana has been deemed illegal at the federal level. It is also in the Constitution that federal law is the law of the land. There is no place to say that state's have the authority to determine the legality of marijuana at a state level. It is illegal, period.

If you are trying to slip this being a 9th or 10th amendment issue, go ahead; but that is just trying to put color into something that is black and white.

Federal law > State law (every time)


But I am curious as to what your argument for this being a 9th amendment issue is?

Tenth Amendment – Powers of States and people.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The Tenth Amendment makes explicit the idea that the federal government is limited only to the powers granted in the Constitution.

Which includes making law, and enforcing it as being higher than state law. Again, I am confused as to how you think this is an infringement of the 10th amendment.
 
I agree R.D..That is why I asked .The Fed's have let drug dealing in hard drugs continue while they go after medical MJ grows. Burglary &home invasion has skyrocketed as nothing is done to stop it. We must get our priorities straight .
 
krupparms said:
The Fed's have let drug dealing in hard drugs continue while they go after medical MJ grows.
What are you babbling about? I work in Fed LE. Marijuana cases are rarely prosecuted in federal court unless they are HUGE operations (hundreds, usually thousands, of pounds and hundreds of thousands of dollars worth of product), or unless they involve other violations such as using firearms in furtherance of drug trafficking, tax evasion, money laundering, etc. Some 50 plant "care provider" in CO or CA isn't getting hammered by the feds.

Second, "medical" use of marijuana is a huge lie. Anyone who has needed THC (tetrahydrocannabinol, the active compound in Marijuana) has been able to get it legally by prescription for many decades, in all 50 states in pill form. The pill is called Marinol (brand name for dronabinol) made by Abbott Labs, and used to be a schedule II drug, and is now schedule III. So it's a huge lie to say marijuana needed to be legalized to provide THC for medical use.

At least the most recent efforts in CO and WA are honest in that they are about recreational use, rather than the lie of "medical" marijuana.
 
What are you babbling about? I work in Fed LE. Marijuana cases are rarely prosecuted in federal court unless they are HUGE operations (hundreds, usually thousands, of pounds and hundreds of thousands of dollars worth of product), or unless they involve other violations such as using firearms in furtherance of drug trafficking, tax evasion, money laundering, etc. Some 50 plant "care provider" in CO or CA isn't getting hammered by the feds.

Second, "medical" use of marijuana is a huge lie. Anyone who has needed THC (tetrahydrocannabinol, the active compound in Marijuana) has been able to get it legally by prescription for many decades, in all 50 states in pill form. The pill is called Marinol (brand name for dronabinol) made by Abbott Labs, and used to be a schedule II drug, and is now schedule III. So it's a huge lie to say marijuana needed to be legalized to provide THC for medical use.

At least the most recent efforts in CO and WA are honest in that they are about recreational use, rather than the lie of "medical" marijuana.
Not completely disagreeing with you, but if I were in a situation where I needed the drug for a bonafide medical reason, I certainly wouldn't want it in pill form - I have no earthly idea what the pharmaceutical companies do to the compound, what they put in it, and whether it's even safe or not (the FDA obviously has issues with testing pharmaceuticals for safety or we wouldn't have so many class action lawsuits due to inadequately tested drugs being pushed on our people).

Personally I would much prefer any medicinal compounds I ingest to be as natural as possible. I don't trust a "medicine" that was created by a corporation whose only purpose is to make money.
 
Not completely disagreeing with you, but if I were in a situation where I needed the drug for a bonafide medical reason, I certainly wouldn't want it in pill form - I have no earthly idea what the pharmaceutical companies do to the compound, what they put in it, and whether it's even safe or not (the FDA obviously has issues with testing pharmaceuticals for safety or we wouldn't have so many class action lawsuits due to inadequately tested drugs being pushed on our people).

Personally I would much prefer any medicinal compounds I ingest to be as natural as possible. I don't trust a "medicine" that was created by a corporation whose only purpose is to make money.

Only problem with that is that herbal (natural) remedies do not have to be submitted to the FDA at all for testing..... As a result there can be some serious problems. Here is an example or two:

A growing number of Americans are using herbal products for preventive and therapeutic purposes. The manufacturers of these products are not required to submit proof of safety and efficacy to the U.S. Food and Drug Administration before marketing. For this reason, the adverse effects and drug interactions associated with herbal remedies are largely unknown. Ginkgo biloba extract, advertised as improving cognitive functioning, has been reported to cause spontaneous bleeding, and it may interact with anticoagulants and antiplatelet agents. St. John's wort, promoted as a treatment for depression, may have monoamine oxidase–inhibiting effects or may cause increased levels of serotonin, dopamine and norepinephrine. Although St. John's wort probably does not interact with foods that contain tyramine, it should not be used with prescription antidepressants. Ephedrine-containing herbal products have been associated with adverse cardiovascular events, seizures and even death.

-From the American Academy of Family Physicians
 
As I stated, I live here! The Feds ARE going after EVEN SMALL MEDICAL GROWS &TAKING THEM TO FED.COURT! That is fact. I don't care if you believe it or not, it is fact . I also am not endorseing MJ! Med.or not just stateing what is going on. The government has a long history of only enforceing laws that are convenient for them. Once again fact. Sorry if that bothers you. JMO.
 
What are you babbling about? I work in Fed LE. Marijuana cases are rarely prosecuted in federal court unless they are HUGE operations (hundreds, usually thousands, of pounds and hundreds of thousands of dollars worth of product), or unless they involve other violations such as using firearms in furtherance of drug trafficking, tax evasion, money laundering, etc.

+1. Here in Alaska, marijuana possession for personal use in one's residence is decriminalized at the state level, though sales and trafficking are still illegal as is being in possession outside your residence. So, while it bears noting that the new laws in Washington and Colorado are much more sweeping, it also bears noting that the DEA and other federal agencies simply do not have the manpower to try and take up the slack in state level enforcement for simple possession. Actually, like DMF said, they don't get involved much at all in drug cases in AK, the main exception I've seen being interstate trafficking operations (which seems like an appropriate role for federal agencies).

As for the OP's original question about firearms purchase and drug use -- here in Alaska, I'm not familiar with any cases where someone was federally prosecuted for lying about marijuana use when purchasing a firearm (but I work in LE at the municipal level, so don't pretend to have exhaustive knowledge of federal cases, and may just not be aware of a handful of cases where it did occur).

What that probably means, however, is that many Alaskans have simply lied on the forms when purchasing firearms. I'm not excusing criminal behavior, but these are the sorts of secondary criminal conduct you get when a government restriction or prohibition is significantly out of step with the world view of large numbers of citizens -- the same sort of thing happened with alcohol prohibition, with a pen stroke effectively making many (most?) Americans law breakers.

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.

I'm sure that varies from state to state, but here in AK if the concern is an intoxicant besides alcohol impairing driving, it's not much of a limiter. It does deprive the DA of the very nice piece of evidence that a blood or breath alcohol test provides, but that just makes things like officer observations and audio or video recordings of the defendant from the time of arrest and processing more significant.

Alaska doesn't have a simple public intoxication law, per se, so that isn't an issue here in a way that it might be a limiter on police authority elsewhere.

However, here's the overwhelming misnomer that is being overlooked by the advocates: legalizing marijuana will not eliminate the criminal activities surrounding it, and comparing it to alcohol prohibition is a red-herring argument, as the surrounding scenarios are not even close to being parallels. Tens of thousands of people will continue to be murdered in the processes of getting marijuana traffic around the U.S.. Just like alcohol and tobacco, it is a politically charged topic with literally tons of money attached to it, and it will be bloody.

I don't know that that tracks very logically to me if you mean legalization at the national level. If you mean that some states decriminalizing or legalizing won't decrease drug violence on a national level, then it makes more sense. Here in AK we have occasional murders over user-level quantities of hard drugs, but not so much about user-level amounts of pot (and both are just statistical noise compared to homicides involving alcohol), but up here major grow operations and the trafficking level of stuff is still quite illegal and does result in violent crime (most of our home invasion robberies, for instance, involve people going after dealers for their drugs or their cash).

Nationwide legalization would drain the pond entirely as it results to marijuana -- you might see some initial kickback from the criminal element losing their revenue stream, but the business world would jump on that revenue source like a hobo on a ham sandwich and would not be at all shy about forcing local, state, and federal law enforcement to take action against criminals hampering their legitimate business efforts. Prohibition denies those involved in the marijuana industry recourse to the law for thefts, robberies, etc., and that drives violence. The same was true when alcohol was outlawed, and when the repeal of Prohibition denied that money to organized criminal gangs they branched out into other directions (including the drug trade).
 
I would agree with most of what H.S. said. But the local LE is no longer around & the Fed's HAVE stepped in &are taking up the slack here in S.OR. .I have no reason to lie about it. It is in the local papers & on the local news.Check for you're self! Since this is turning into a argument, I will take my leave. Good Night.
 
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