Illinois proposes allowing medical pot users to keep guns

[monotonous_iterancy]

Illinois (of all states) is proposing defying federal rules and allowing medical marijuana users to keep the guns they already have if they get a medical marijuana card.

http://www.chicagotribune.com/news/...ers-from-owning-guns-20140417,0,4578775.story

What do you all think?

 

[RetiredUSNChief]

I'm thinking Illinois is fixin' to get their keisters handed to them.

The proscription is federal law, not state law, for one.

For another, here's what Form 4473 has to say about it:

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


The state can say/do whatever they wish...but they cannot trump federal law on this matter.

Here's a previous string that discuss much of this already:

http://www.thehighroad.org/showthread.php?t=684256

 

[Onward Allusion]

It's interesting coming from a State with some of the tougher gun laws in the US. I would like to see what the Feds are going to do with WA, CA, CO, IL and a bunch of other States with either medical or recreational marijuana laws on the books.

 

[medalguy]

This should get interesting, real fast. Pass the popcorn.

Of course, some state officials think their state laws trump federal laws, but depending on the vibes coming from the White House, Illinois might just be OK on this one.

 

[monotonous_iterancy]

Of course, some state officials think their state laws trump federal laws, but depending on the vibes coming from the White House, Illinois might just be OK on this one.

That reminded me of something...Pres. Obama is from Illinois. Does that change things?

 

[Twiki357]

Is it is or is it isn’t? According to the news article “Medical marijuana patients would be able to keep their guns.” It doesn’t address purchasing a gun. On that basis, 11.e: "Are you an unlawful user of….” Of the 4473 would not come into play.

Even then, the operational word is “Unlawful” which seems to be up for interpitation. The Feds have pretty much abandon going after those with state approved medical marijuana cards. So if a person is authorized by the state, are they or are they not really an illegal user? Fed, yes; state, no. But I don’t see the Feds going after anyone for possession other than as a secondary charge.

 

[bigfatdave]

All this nonsense stems from an unhealthy tendency to ask permission in the population.

Quit it! Act like a citizen, not a subject.

 

[larryh1108]

Think about it. This is IL. Home of Obama, Rahm and Madigan.

This is a legal way of entrapment. They will open the door for all pot users to get their pot card and their FOID card and life is merry. Somewhere along the way, the Feds put their foot down on "legal" pot users who own firearms (see form 4473). So, someone gets prosecuted on the federal level, a precedent is set and the IL govt passes a new law stating that they can no longer allow "registered" pot users to own firearms. They then compare the marijuana database to the FOID database and revokes all the FOID cards of anyone who also has a marijuana card. In one, fell swoop, they prohibit hundreds of thousands of lawful gun owners from owning firearms. All they do is send a letter saying their FOID card has been revoked and all of a sudden they are criminals.

IMO, anyone that has a valid FOID card and applies for a medical marijuana card is opening the door to lose their rights to own and/or faces an expensive legal battle somewhere down the road to get their rights back. Do not think, for one minute, that the govt of the state of IL is doing "the right thing" about owning guns and using marijuana. This is a trap planned by some very powerful politicians.

 

[il.bill]

All this nonsense stems from an unhealthy tendency to ask permission in the population.

Quit it! Act like a citizen, not a subject.

I agree with bigfatdave.

It is nonsense to even think of having to 'ask permission' to be allowed to use something that a doctor has prescribed to improve your medical condition.




Oh wait - did he mean that 2nd Amendment thing?

 

[Jesse H]

IMO no different than a legal alcohol user owning firearms. The fact that laws have to be established is ridiculous.

 

[wally]

Of course, some state officials think their state laws trump federal laws,

They should unless the Constitution specifically gives that power to the federal government.

For another, here's what Form 4473 has to say about it:

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

Yes the current 4473 wording would seem to cause an insurmountable problem at the moment.

The unlawful user part is the issue, it may no longer be a state crime, but it still is a federal crime -- one of many Obama and cronies choose to ignore and not enforce.

I'm pretty sure most medical and recreational uses are not addicted.

This is a legal way of entrapment. They will open the door for all pot users to get their pot card and their FOID card and life is merry. Somewhere along the way, the Feds put their foot down on "legal" pot users who own firearms (see form 4473). So, someone gets prosecuted on the federal level, a precedent is set and the IL govt passes a new law stating that they can no longer allow "registered" pot users to own firearms. They then compare the marijuana database to the FOID database and revokes all the FOID cards of anyone who also has a marijuana card. In one, fell swoop, they prohibit hundreds of thousands of lawful gun owners from owning firearms. All they do is send a letter saying their FOID card has been revoked and all of a sudden they are criminals.

This is exactly the problem until federal law on the issue is changed instead of being currently ignored by decree of the current administration


The biggest issue IMHO is that the "rule of law" is being rapidly eroded. That, and the fact that Obama will have racked up more national debt in his eight years than all his predecessors combined!

 

[Trent]

The way Illinois (and other states) gets around the Federal prohibition on marijuana is by requiring growers, laboratories which do testing, and dispensaries to sign up for the Illinois ran "scientific marijuana testing" program.

That's right - the entire thing is being run as one big science experiment - because THAT doesn't fall afoul of Federal regulations.

So medical marijuana patients in Illinois - technically - are participating in the science experiment. Thereby, they are not illegal users of marijuana.

Check the JCAR rules on IL for yourself. I was actually considering starting a company to be a registered grower, but I can't afford the entry fee. To qualify as a registered grower, you have to put $2 million in to an escrow account, pay a $25,000 non refundable application fee, and pay a $200,000 first-year permit fee if you are approved. Each year thereafter it costs $100,000 to renew the permit fee. You also have to have $400,000 in liquid assets.

I fall just a bit short of that. Even so, it would have been a lucrative business move, as a growing operation could bring in about 4.5 million per year in revenue off of a 6,000 sq. foot operation.

The big issue is what makes it an unacceptable risk - at ANY time the state can revoke your permit for no reason other than they want to. And ANY time a permit is revoked the grower *forfeits* the 2 million dollars in escrow to the state!

Anyway, the whole thing stinks of cronyism and looks to be just another way for Chicago political thugs to line their pockets, since they control who grows, who sells (limited # of dispensaries, state chooses who runs them), and so on. It's a VERY closed market, and ripe for corruption - and vast riches.

But I think you are all wrong at least on the legality of gun owners - medical marijuana patients are part of the "science" experiment the state is running (for massive profit), which definitely doesn't fall in to the "unlawful users of" clause, since that *is* a lawful activity under Federal law.

 

[wally]

But I think you are all wrong at least on the legality of gun owners - medical marijuana patients are part of the "science" experiment the state is running

If that is indeed the federal "loophole", I've never heard of it before. Does Washington or Colorado or California have such on-going "experiments"?

IF the loophole is real, then they are not illeagal users, and assuming they are not addicts, then there would be no perjury on the 4473 question.

 

[Frank Ettin]

The way Illinois (and other states) gets around the Federal prohibition on marijuana is by requiring growers, laboratories which do testing, and dispensaries to sign up for the Illinois ran "scientific marijuana testing" program....

I kind of doubt this will pass muster under the federal rules. See, for example 21 CFR 1301.18 for some of the federal rules for conducting clinical trials with Schedule I controlled substances (which marijuana is):

§1301.18 Research protocols.

(a) A protocol to conduct research with controlled substances listed in Schedule I shall be in the following form and contain the following information where applicable:

(1) Investigator:

(i) Name, address, and DEA registration number; if any.

(ii) Institutional affiliation.

(iii) Qualifications, including a curriculum vitae and an appropriate bibliography (list of publications).
​

(2) Research project:

(i) Title of project.

(ii) Statement of the purpose.

(iii) Name of the controlled substances or substances involved and the amount of each needed.

(iv) Description of the research to be conducted, including the number and species of research subjects, the dosage to be administered, the route and method of administration, and the duration of the project.

(v) Location where the research will be conducted.

(vi) Statement of the security provisions for storing the controlled substances (in accordance with Sec. 1301.75) and for dispensing the controlled substances in order to prevent diversion.

(vii) If the investigator desires to manufacture or import any controlled substance listed in paragraph (a)(2)(iii) of this section, a statement of the quantity to be manufactured or imported and the sources of the chemicals to be used or the substance to be imported.
​

(3) Authority:

(i) Institutional approval.

(ii) Approval of a Human Research Committee for human studies.

(iii) Indication of an approved active Notice of Claimed Investigational Exemption for a New Drug (number).

(iv) Indication of an approved funded grant (number), if any.​

(b) In the case of a clinical investigation with controlled substances listed in Schedule I, the applicant shall submit three copies of a Notice of Claimed Investigational Exemption for a New Drug (IND) together with a statement of the security provisions (as proscribed in paragraph (a)(2)(vi) of this section for a research protocol) to, and have such submission approved by, the Food and Drug Administration as required in 21 U.S.C. 355(i) and Sec. 130.3 of this title. Submission of this Notice and statement to the Food and Drug Administration shall be in lieu of a research protocol to the Administration as required in paragraph (a) of this section. The applicant, when applying for registration with the Administration, shall indicate that such notice has been submitted to the Food and Drug Administration by submitting to the Administration with his/her DEA Form 225 three copies of the following certificate:...

 

[TennJed]

Before this thread I had no idea someone on medical marijuana couldn't own or buy a gun, or citizens of CO and WA that use it recreationally. Is it all because of the wording "unlawful user" seems like a pretty grey area. Unless you are actually smoking while filling the paperwork, how would you define unlawful. If you are not using it at that moment you are not an unlawful user.

Can one be arrested just for past use of it? Regardless if it was 30 years ago or 3 days ago.

 

[Frank Ettin]

Before this thread I had no idea someone on medical marijuana couldn't own or buy a gun, or citizens of CO and WA that use it recreationally...

1. State law on marijuana 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 prohibited person and commits a federal felony by possessing a gun or ammunition.
   
   
4. Federal law defines "unlawful user" as follows (27 CFR 478.11):

   Unlawful user of or addicted to 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. For a current or former member of the Armed Forces, an inference of current use may be drawn from recent disciplinary or other administrative action based on confirmed drug use, e.g., court-martial conviction, nonjudicial punishment, or an administrative discharge based on drug use or drug rehabilitation failure.

   
   
5. And in U.S. v. Burchard, 580 F.3d 341 (6th Cir., 2009) the Sixth Circuit found that (at 355):

   ...the regular use of a controlled substance either close in time to or contemporaneous with the period of time he possessed the firearm...

   would support conviction under 18 USC 922(g)(3).
   
   
6. 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.

And so, for anyone gnashing his teeth and rending his garments about this being wrong:

1. The law at present is that someone who is an unlawful user of a controlled substance (including a user of marijuana, even under a state medical marijuana law) is prohibited under federal law from having possession of a gun.
   
   
2. That could be fixed. Congress could amend 18 USC 922(g) to provide that an unlawful user of a controlled substance would not include someone using marijuana under a state medical marijuana law. Or Congress could amend the Controlled Substances Act to provide for the lawful prescribing of marijuana (just as it does for Oxycontin). Or Congress could fix this in a variety of other ways.
   
   
3. So have you written you Congressional representatives?

..."unlawful user" seems like a pretty grey area...

Not all that gray. See above.

 

[TennJed]

Not all that gray. See above.

It still seems like, without an arrest record, it is a grey area. As you quoted above.

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.

The bolded part especially. Unless you have a conviction define "a pattern of use or possession that reasonably covers the present time?" That is about as grey as it gets. Daily? Weekly? Monthly? 2x a year?

Define, in black and white, a pattern of use

ETA, I am not trying to be argumentative, I am honestly curious

 

[Damon555]

The only people that worry about crap like this are the ones who still think that Reefer Madness is an accurate portrayal of how people act when they smoke pot......

 

[Frank Ettin]

...The bolded part especially. Unless you have a conviction define what a pattern of use or possession that reasonably covers the present time? That is about as grey as it gets...

That's the sort of thing that becomes a question of fact for a jury. And as the the 6th Circuit said in U.S. v. Burchard, 580 F.3d 341 (6th Cir., 2009) the Sixth Circuit found that (at 355):

...the regular use of a controlled substance either close in time to or contemporaneous with the period of time he possessed the firearm...

would support conviction under 18 USC 922(g)(3).

So while it's a question of fact for a jury, there is guidance in regulation and case law as to how a jury is to decide whether someone is a "user." In law, we deal with those sorts of things all the time.

The only people that worry about crap like this are the ones who still think that Reefer Madness is an accurate portrayal of how people act when they smoke pot....

Or gun owners who might want to consider using marijuana, possibly medially, but want to keep their guns and avoid a length sojourn in federal prison.

But I actually suspect from your comment that you have nothing useful to contribute to this discussion. You might not take the law seriously, but at THR we help people understand the law, how it works and how it might apply. We do this so that we can help people make wise decisions and avoid violating the law. Getting caught violating the law can have very undesirable consequences.

 

[TennJed]

That's the sort of thing that becomes a question of fact for a jury. And as the the 6th Circuit said in U.S. v. Burchard, 580 F.3d 341 (6th Cir., 2009) the Sixth Circuit found that (at 355):

​

would support conviction under 18 USC 922(g)(3).

So while it's a question of fact for a jury, there is guidance in regulation and case law as to how a jury is to decide whether someone is a "user." In law, we deal with those sorts of things all the time.

Or gun owners who might want to consider using marijuana, possibly medially, but want to keep their guns and avoid a length sojourn in federal prison.

But I actually suspect from your comment that you have nothing useful to contribute to this discussion. You might not take the law seriously, but at THR we help people understand the law, how it works and how it might apply. We do this so that we can help people make wise decisions and avoid violating the law. Getting caught violating the law can have very undesirable consequences.

I think I get what you are saying, things like are ultimately up to a juror, but there guidance they will be given and instructed to use to determine the result.

 

[Trent]

Did some more digging on this.

From the Illinois Medical Cannabis Pilot Program draft rules;

B) Federal Prosecution – the United States Congress has determined that
cannabis is a controlled substance and has placed cannabis in Schedule I
of the Illinois Controlled Substances Act. Growing, distributing, and
possessing cannabis in any capacity, other than as part of a federally
authorized research program, is a violation of federal laws. The state of
Illinois’ Compassionate Use of Medical Cannabis Pilot Program Act does
not authorize any registrant to violate federal laws.

Later in the document;

2) Research Plan: The applicant shall provide the Department with a detailed
proposal to conduct, or facilitate, a scientific study or studies related to the
medicinal use of cannabis. To the extent it has been determined, the applicant
may include in its proposal, a detailed description of:
A) The methodology of the study;
B) The issue(s) to be studied;
C) The method(s) that will be used to identify and select study participants;
D) The identity of all persons or organizations that will be worked with in
connection with the study, including the role of each;
E) The duration of the study; and
F) The intended use of the study results.

Clearly, Illinois is trying to get the "Compassionate Medical Cannabis Pilot Program" certified as a legitimate Federal study to make this all happen.

In addition in several points throughout the JCAR rules Illinois rulemaking clearly indicates that under NO circumstances will medical marijuana or supplies (seed, etc) cross state lines. (Assuming they are trying to avoid issues with the commerce clause that forms the basis for the Federal laws....)

Various documents quoted available here; http://www2.illinois.gov/gov/mcpp/Pages/default.aspx

I'm still of the opinion that if the program becomes (or is already) Federally certified as a "research project" ... I don't think the gun owning issue *IS* an issue because people who participate are not unlawful users.... clearly Illinois is taking steps to try to move that direction by requiring ALL growers to submit a "research plan" for the program.

 

[Frank Ettin]

I doubt that they will be able to get any sort of "compassionate use" program accepted by the feds as a clinical trial.

Among other things, the protocol needs scientifically defensible patient selection criteria. Patient selection criteria need to be consistent with, and related to, the study goals and parameters. The researchers need to be qualified. There are just a lot of serious details.

All the rules are geared around doing serious, well thought out and scientifically valid research -- not as a way to get around Controlled Substances Act restrictions.

 

[Cee Zee]

Whatever attempt states are making at having their medical pot laws legal almost seems irrelevant at the moment. The feds don't have the manpower to enforce those laws on their own. And it isn't just this issue. States have rejected gun laws that tend to take away the right to bear arms. Whether this will all come to a sudden halt is a matter of speculation. I certainly am not anxious to test the waters on these laws. I'm too old to go to jail. Not that I want to smoke any weed mind you but some of the gun laws states have rejected are very good things IMO. And to be honest I'm not on the side of thinking it's some wild, crazy drug that requires stringent laws to control it and the use of guns by anyone that uses it. Pot is not as bad as alcohol on the body or the brain. Prohibition isn't really a good idea for something like pot. I don't think the government should be handing out syringes of heroin or anything but pot seems to be lumped in with some very serious drugs that do far more damage. Pot certainly does do damage but I would very much trust a man on pot with a gun more than I would trust a man on LSD with a gun. I don't see too many pot smokers that think there's a big hairy monster siting beside them on the couch which might turn out to be the wife or a kid. And LSD can certainly make you think things like that. It's crazy to have pot in the same category IMO so whether the government says they should lose their guns or not I don't think it's right to take them away. The only thing is they are breaking the law and that alone is not good. But don't make it seem like pot is some super drug like PCP.

 

[Trent]

Cee Zee; 20 years ago, back in high school, when I was younger and dumber, I smoked a little. Worst thing I ever messed up was a cheeseburger. Alas, I've been clean for 20 years next May, and don't plan on screwing that record up. Only reason I started studying up on the MCPP in Illinois was for sheer curiosity (and profit, something I'm always interested in). Unfortunately the State has aligned all of this to be just another corrupt system - buddy-buddy handouts to make political friends rich.

I plan on filing a series of Freedom of Information Act requests next year after it's all lifted off the ground to see if I can trace which "buddies" get the right to get rich; see if there are any political connections to nail down. Also, strictly of curiosity.

Frank; I agree that the state is grasping at straws, and further agree that it's a real stretch if the Federal government were to approve these "research" programs.

My opinion matters little; but my opinion is that the Federal Government made a mistake when they made cannabis a schedule 1 drug so long ago; and recreational use alone should not disqualify someone a constitutional right (even if I do not personally fall in to that category; it's not fair for my fellow citizens.)

 

[larryh1108]

And I will still contend that if you are on the medical marijuana "list" and you are also on the FOID "list" that the day will come when it bites you in the backside. Anyone who believes IL is looking out for their rights is just in way over their head.