Government Gun Records?

[Frank Ettin]

....here in Colorado we have an abundance of stores selling pot, an even larger number of people growing it, and state officials slapping themselves on the back for the revenue it is producing for the state....

And yes, under Colorado state law, use and sale of marijuana is legal. So someone using or selling marijuana (subject to Colorado tax law) will not be arrested by local or state police for violation of state law. But --

1. Marijuana continues to be illegal under federal law.
   
   
2. While current, informal federal policy is not to enforce federal law with regard to medical or recreational use in States in which the medical or recreational use of marijuana is legal, that policy could be changed by the President or the Attorney General, at any time and without any required formalities.
   
   
3. If federal policy on the enforcement of federal law regarding marijuana changes, a user or seller of marijuana, even when legal under state law, can be arrested by federal agents, tried in federal court and sent to federal prison.
   
   
4. Furthermore, a user of marijuana, even if legal under state law, is an unlawful user of a controlled substance under federal law. He is therefore prohibited under federal law (18 USC 922(g)(3)) from possessing a gun or ammunition. The federal government has not indicated any policy to forebear from enforcing 18 USC 922(g)(3) with respect to marijuana use, even when legal under state law.
   
   
5. As the Oregon Supreme Court specifically noted in Willis v. Winters, 253 P.3d 1058 (Or., 2011), at pp. 1065 - 1066 (emphasis added):

   ...Neither is the statute [the Oregon CHL law] an obstacle to Congress's purposes in the sense that it interferes with the ability of the federal government to enforce the policy that the Gun Control Act expresses. A marijuana user's possession of a CHL may exempt him or her from prosecution or arrest under ORS 166.250(1)(a) and (b), but it does not in any way preclude full enforcement of the federal law by federal law enforcement officials...

 

[CoalTrain49]

Furthermore, a user of marijuana, even if legal under state law, is an unlawful user of a controlled substance under federal law. He is therefore prohibited under federal law (18 USC 922(g)(3)) from possessing a gun or ammunition. The federal government has not indicated any policy to forebear from enforcing 18 USC 922(g)(3) with respect to marijuana use, even when legal under state law.

And that shows up on the 4473 (11e) that goes into NICS. The FFL keeps a copy of that record and it's available to the fed. If I read the penalty clause correctly you have just committed a felony when you fail to answer the questions truthfully and sign the document. Lots of little pitfalls here when you purchase through an FFL.

Be careful.

 

[X-Rap]

Between the 4473's and reported thefts the long arm of the law can track down ownership/possession pretty quickly in many cases.
As far as laws and their enforcement, the lawyers are correct in stating that a law on the books remains a law but the reality we live in also makes it clear that there are many laws that enforcement from local DA's all the way to the USAG and the oval office are very selective. Recent local outcomes from grand jury's have also been dismissed and given extra federal scrutiny so the perception that laws at times don't matter is understandable.
Pot is a good example in that I don't believe the USAG has any inclination to prosecute nationally and certainly not in a state like Colorado.
I have heard that there are a great number of gun crimes that go without prosecution when the added felony conviction would in the long run offer longer sentences and protect the public at large.

 

[mgkdrgn]

I think we are naive to think that the ATF doesn't have a database of all 4473 forms ever completed. They say they don't keep them longer than (insert time frame here), but why would they only be interested in knowing the first place it goes after manufacture?

THEY NEVER GET THE 4473'S until a shop goes out of business. When your NICS check is called in the only info they get is Long gun, handgun, or other. And -that- call goes to the FBI, not ATF.

 

[mgkdrgn]

And that shows up on the 4473 (11e) that goes into NICS.

Nope. 4473 doesn't go to NICS. In fact, if you answer YES to that question, the process stops right there and the check is never called in as you have already failed.

 

[Steel Horse Rider]

Frank: This will probably put you completely over the edge: http://news.yahoo.com/proposal-seeks-gun-permits-colorado-pot-users-175124359.html

The lunacy continues for those of us ignorant enough to believe our lying eyes. I believe there is quite a difference between the legal world and those of us who live in the real world. Maybe you can call me some more High Road names now. It certainly leaves me feeling all warm and fuzzy whenever I read your posts.

 

[X-Rap]

I guess when you call it a guideline it nullifies it as law. Kind of like Illegal Alien and the new executive orders.
I'm all for the federal gov keeping its nose out of states business but this pick and choose based on political views and inclinations will create nothing but confusion and anarchy which I personally believe to be the intent.

 

[JRH6856]

I guess when you call it a guideline it nullifies it as law. Kind of like Illegal Alien and the new executive orders.
I'm all for the federal gov keeping its nose out of states business but this pick and choose based on political views and inclinations will create nothing but confusion and anarchy which I personally believe to be the intent.

This "pick and choose" has been around for a long time. There are many laws on the books that are there for convenient enforcement when a charge is needed or an excuse to trop and search. Most state gun control laws in the southern states were there to be enforced agaisn blacks and ignored against whites except when a charge was needed. illegal possession of anything illegal creates a prima facie case that is easy to prove. Selective enforcement is nothing new blatantly stating it as a policy is not a common practice even whre it is common knowledge.

It is a method of governent empowerment. Put enough laws on the books, and everntually everone will be guilty of breaking at laest one which gives the government additional leverage to control or suppress undesirable resistance to other government polices or actions.

 

[Frank Ettin]

Frank: This will probably put you completely over the edge: http://news.yahoo.com/proposal-seeks...175124359.html...

Not really. They did that in Oregon too, and it will be just as meaningless in Colorado as it is in Oregon. So to be clear, I'll expand on what I posted in post 51.

The Oregon Supreme Court, in Willis v. Winters, 253 P.3d 1058 (Or., 2011), ruled that Michael Winters, as Sheriff of Jackson County, was required under Oregon law to issue a concealed handgun license to Cynthia Willis even though she was a medical marijuana user. The case did not substantively address the federal law issue. In fact, the Oregon Supreme Court specifically noted (at pp. 1065 - 1066, emphasis added):

...Neither is the statute [the Oregon CHL law] an obstacle to Congress's purposes in the sense that it interferes with the ability of the federal government to enforce the policy that the Gun Control Act expresses. A marijuana user's possession of a CHL may exempt him or her from prosecution or arrest under ORS 166.250(1)(a) and (b), but it does not in any way preclude full enforcement of the federal law by federal law enforcement officials...

In other words: Ms. Willis would not be arrested by Oregon LEOs or prosecuted under Oregon law for carrying a concealed handgun; but she can still be arrested by federal LEOs, prosecuted under federal law and sent to federal prison for being a prohibited person in possession of a gun in violation of 18 USC 922(g)(3).

...The lunacy continues for those of us ignorant enough to believe our lying eyes....

Yes, ignorant folks like you are ignorant and dangerous because that they don't know what they don't know and apparently refuse to learn.

The fact that your ignorance can be a danger to you doesn't matter. But in your efforts to spread your ignorance you can affect others. Anyone unwise enough to pay attention to your erroneous opinions on legal matters risks getting himself into a lot of trouble. And your potentially leading others to harm will not be tolerated here.

...I believe there is quite a difference between the legal world and those of us who live in the real world....

When anyone does something that involves law, the legal can become his real world. So one might choose to commit illegal acts hoping that he will not get caught or that the authorities will decide not to arrest and prosecute him. He can choose to trust his luck.

But if the authorities choose to arrest and prosecute him, his "real world" involves tens or hundreds of thousands of dollars in legal bills, a felony conviction, loss of rights including gun rights, prison, and all the other undesirable baggage that comes with a felony conviction.

For today, the federal government has decided not to prosecute simply medical or recreational marijuana use in States where it is legal. There is absolutely no guarantee that they will not change their minds tomorrow. And we have no reason to believe that their forbearance will extend to gun possession by marijuana users.

 

[Sam1911]

Frank: This will probably put you completely over the edge:

Not really. All that can be is a continuation and extension of a state refusing to, ITSELF, prosecute violations of federal law. It simply ... CANNOT ... MAKE ... THIS ... LEGAL ... PERIOD.

I don't know why that's so controversial to you. Why is torturing the semantics so important to you? Legal and illegal are clearly defined terms. Using marijuana is illegal under the overarching, encompassing, predominate laws of the entire country. Buying a gun while a user of an unlawful controlled substance is completely illegal under those laws as well.

The fact that a state, or a couple of states, or a handful of states, or even a majority of states refuse to prosecute those crimes -- or even if this current federal government declines to actively pursue it under some circumstances -- doesn't change what the law IS.

 

[Frank Ettin]

....The fact that a state, or a couple of states, or a handful of states, or even a majority of states refuse to prosecute those crimes -- or even if this current federal government declines to actively pursue it under some circumstances -- doesn't change what the law IS.

And folks who confuse "we don't care right now" and "legal" might well be in for a very unpleasant surprise. "We don't care right now" can become "vigorously prosecute" at the drop of a hat and without notice. Relying on prosecutorial discretion to keep your fundament out of prison is foolhardy.

 

[Steel Horse Rider]

Sam: It is not controversial, and I am not a pothead, in fact I believe the road being followed by the voters in Colorado will lead to nothing but further rot and anarchy. The point I was trying to make, and Frank is simply far too educated to understand, is that what people experience in their lives determines their view of legality. Colorado does not prosecute under federal pot laws as well as not prosecuting the gun regulations they passed two years ago so those laws may as well not exist. Frank is correct in that they are on the books and can be the basis for prosecution but the reality is that they are not being enforced and I am pretty sure that if he is as good of an attorney as he proclaims that anyone arrested under those statutes should walk if represented by competent council. However, given Frank's attitude I believe he is probably a member of the RNC....

 

[Frank Ettin]

...what people experience in their lives determines their view of legality...

And a lot of the time, what people experience in their lives can lead them to erroneous conclusions. Many of my colleagues made a lot of their money digging people out of the holes those sorts of erroneous conclusions got themselves into.

...they [the laws] are on the books and can be the basis for prosecution but the reality is that they are not being enforced and I am pretty sure that if he is as good of an attorney as he proclaims that anyone arrested under those statutes should walk if represented by competent council...

First, the word is "counsel."

Second, why do you think someone who violates federal marijuana law (or is a marijuana user in possession of a gun) and is prosecuted, would be able to "beat the rap" with competent counsel? There is no reason why those laws would not be valid and enforceable.

 

[CoalTrain49]

Nope. 4473 doesn't go to NICS. In fact, if you answer YES to that question, the process stops right there and the check is never called in as you have already failed.

OK, I'll try this one more time. This is the form that you fill out.

https://www.atf.gov/files/forms/download/atf-f-4473-1.pdf

If the call doesn't go to NICS who does it go to?

What I'm trying to say is if you answer no to 11e, you smoke marijuana on occasion (illegal in all 50 states), you sign it, the FFL calls it in, you get a proceed, you take your pistol, you have now committed a felony.

 

[IdahoSkies]

If the feds really wanted a universal background check they would simply make access to the NICS system open to everyone. Then everyone who transferred ownership of a firearm would have a way to check if an individual was a prohibited person. That would put the burden where it should be on the purchaser and seller respectively.

As long as the Feds seek a third party intermediary what they are really asking for is a way to begin to make paperwork, add transaction cost, and provide an opportunity for more restrictive future regulations.

I am in favor of private sale background checks that I conduct, whether its asking for a concealed carry permit, or running an individuals record on the state's court repository. I am not in favor of a system that injects an intermediary into my transaction.

 

[CoalTrain49]

I am in favor of private sale background checks that I conduct, whether its asking for a concealed carry permit, or running an individuals record on the state's court repository. I am not in favor of a system that injects an intermediary into my transaction.

Are you in idaho? You don't need to run a BC on a private sale in ID. Record the persons DL information and provide bill of sale with SN if you are the seller or get one from seller. We used to be able to do private sales here. I never did a transaction without seeing a CPL. That was my BC. There is a lot of confidential info in those databases that LEO's use with laws regarding who can use them. Health care records are tightly controlled and if you violate the laws protecting those you could have a bad day or two..

 

[dogtown tom]

CoalTrain49 ....So I reject this notion that it is a state problem that NICS doesn't work. It's a fed gov't problem and states would do well to move away from it entirely if they want a BC that means anything. Thirteen states don't use it because they have a better system. They keep their own records and contract the service just like the fed does and they get better results.

Oh.Good.Grief.
Those states aren't using "their own records"..............they are merely the POC or "point of contact FOR THE FBI NICS!!!!!!!!:banghead:

Instead of a dealer contacting FBI NICS directly (and for free), in those states the dealer has to call a state agency who THEN accesses the same databases the FBI does.

It just gets deeper and deeper..............:banghead:

CoalTrain49

Quote:
Nope. 4473 doesn't go to NICS. In fact, if you answer YES to that question, the process stops right there and the check is never called in as you have already failed.

OK, I'll try this one more time. This is the form that you fill out.

https://www.atf.gov/files/forms/down...f-f-4473-1.pdf

If the call doesn't go to NICS who does it go to?

Sure, the CALL goes to NICS.............but that wasn't what you wrote: "And that shows up on the 4473 (11e) that goes into NICS..."

No forms go to NICS and the responses to 11a through 11l are not given to NICS.

 

[Speedo66]

Somehow, they were able to go back almost 20 years to find who had purchased the gun used to shoot the 2 NYC PO's.

Again, I don't think enforcement agencies ever truly rid themselves of information.

http://www.nytimes.com/2014/12/25/n...8F43826362F8B1E03A0&gwt=pay&assetType=nyt_now

 

[Frank Ettin]

New York State and New York City have their own gun registration laws and have for many years.

 

[CoalTrain49]

Oh.Good.Grief.
Those states aren't using "their own records"..............they are merely the POC or "point of contact FOR THE FBI NICS!!!!!!!!

Instead of a dealer contacting FBI NICS directly (and for free), in those states the dealer has to call a state agency who THEN accesses the same databases the FBI does.

It just gets deeper and deeper..............

I believe you have a misunderstanding of full, non and partial POC.

States may choose among three optional modes of operation referred to as full point of contact (full POC), non-POC and partial-POC. In full-POC states, Federal Firearms Licensees (FFLs) first query NICS and related state files through one or more organizational units – referred to as points of contact – and then, if necessary, the staff of the POCs carry out the required follow-up research. In non-POC states, FFLs contact the NICS Operations Center directly by telephone or via the Internet and any required follow-up research is performed by the NICS’s FBI staff. In partial POC states, FFLs query NICS and state files through a POC for handgun purchases or permits but query NICS directly for long gun purchases. While POC states charge a fee to the FFLs for each background check, there is no charge in non-POC states; Congressional appropriations to the FBI allow for waiving of the fees. However, since the fees may not fully underwrite the cost of implementing and operating a POC, there may be an economic incentive for a state to elect non-POC status. Politically, a state’s attitude toward gun ownership may also influence its choice of status. Many POC states have enacted prohibiting legislation that is stricter than federally-mandated regulations.

Also, some states by law can't pass some of their records to the fed. database. They aren't required to by fed law so they send them what they want, when they want. They aren't going to violate their own privacy laws to populate a fed database. So they would be using "their own records" for a BC.

Sure, the CALL goes to NICS.............but that wasn't what you wrote: "And that shows up on the 4473 (11e) that goes into NICS..."

No forms go to NICS and the responses to 11a through 11l are not given to NICS.

OK, 11e doesn't go to NICS as you say. Those calls are supposed to be vaporized anyway. My point was that you may have made a false statement on a document (fed form) and signed it. What happens if you have a prior conviction that didn't make into the NCIC database and it is discovered later? Is the fed going to prosecute you on a false statement on the 4473? Maybe, they have been known to do it with straw purchase (11a).

Also, as you say, all of the states use NICS and I correct myself here. Some also use their own databases to do a BC.

Stop being a jerk and lets just present the information that we have. This isn't a contest of wits.

 

[dogtown tom]

CoalTrain49

Quote:
Oh.Good.Grief.
Those states aren't using "their own records"..............they are merely the POC or "point of contact FOR THE FBI NICS!!!!!!!!

Instead of a dealer contacting FBI NICS directly (and for free), in those states the dealer has to call a state agency who THEN accesses the same databases the FBI does.

It just gets deeper and deeper..............

I believe you have a misunderstanding of full, non and partial POC.

No sir I fully understand what a POC is. Whether a state is full or partial POC is wholly immaterial to my response.

What you don't have any understanding of is the entire NICS....whether POC or nonPOC. Your little clip and paste doesn't support your contention that POC states utilize a better background check database than the FBI NICS. Your clip and paste actually proves MY point.....states that are their own POC use the FBI NICS and the exact same database.
Once again when your assertion is proven incorrect you slide sideways as if your original comment was never written.

OK, 11e doesn't go to NICS as you say. Those calls are supposed to be vaporized anyway. My point was that you may have made a false statement on a document (fed form) and signed it. What happens if you have a prior conviction that didn't make into the NCIC database and it is discovered later?

Common sense would tell you that prohibiting information not in a database would not stop the transaction. What do you propose? Waiting periods? How long? Five days? Ten? Thirty? Obviously the point of the FBI NICS has totally escaped you.......guess what the "I" in NICS represents? (hint: it doesn't stand for indefinite)

Is the fed going to prosecute you on a false statement on the 4473? Maybe, they have been known to do it with straw purchase (11a).

In reality, its not likely they would prosecute. I've caught people trying to do a straw purchase and ATF wasn't the least bit interested. If the buyer lies on the 4473 and subsequently passes the NICS check that's HIS problem. Typically lying on a 4473 is only prosecuted when the person is already charged with other felonies or under investigation for other crimes. in the Abramski case he was being investigated for robbery when the cancelled check for the purchase of a Glock was discovered. If his uncle had paid in cash Abramski wouldn't be doing time.

Stop being a jerk and lets just present the information that we have. This isn't a contest of wits.

Sorry, but you have yet to produce anything other than misinformation. if you don't like forum members challenging your posts......then don't post nonsense.

I think only a jerk would purposely post erroneous information.

You think this a battle of wits? It's not, it's a battle of facts vs ignorance.

 

[CoalTrain49]

^
OK, I give up. You seem to know more than a PHD who studied the system for a number of years and produced a report to the DOJ at their request.

I can't argue with that kind of awesome knowledge.

I can see I'm on a fool's errand here.

But more important, can I still get my $10 CHL?

 

[dogtown tom]

CoalTrain49 .....But more important, can I still get my $10 CHL?

See, this is why your posts are less than stellar...........lack of reading comprehension.

I don't offer a $10 Concealed Handgun License......I DO offer a discounted $10 firearm transfer to those who hold a Texas CHL.

So, no you can't get a $10 CHL from anyone in Texas as far as I know.

 

[Walkalong]

Let's call this one done. I am not sure why, but this subject so often gets heated. I just don't get it. Why can't folks make their points without getting personal.