Illinois proposes allowing medical pot users to keep guns

[BSA1]

This is a long twisted discussion but the plain and simple reality is the question about illegal drug use is mainly a honesty self-admission test.

Absent a U.A. test at the time the 4473 is submitted and absent a criminal conviction (although the Feds will argue a arrest w/o a conviction) there is no way for the Government to prove illegal use of pot. Obamacare might be a game changer depending on how much of a patients medical history has to be reported to the Government.

Although use of Mary Jane is always the drug discussed there are other types of common drug abuse that are common and attract little attention.

 

[Field Tester]

This is a long twisted discussion but the plain and simple reality is the question about illegal drug use is mainly a honesty self-admission test.

Absent a U.A. test at the time the 4473 is submitted and absent a criminal conviction (although the Feds will argue a arrest w/o a conviction) there is no way for the Government to prove illegal use of pot. Obamacare might be a game changer depending on how much of a patients medical history has to be reported to the Government.

Although use of Mary Jane is always the drug discussed there are other types of common drug abuse that are common and attract little attention.

Yes and no.

Say there's a self defense shooting. Guy breaks into someone's house and is now dead, but a over zealous DA wants to go to court with it. The victim has a RX for marijuana. The Prosecution can use the 4473 to destroy credibility saying the victim committed perjury.

 

[sonick808]

why wouldn't they let them keep their guns ?

We let people imbibe and keep their guns, and we all know just how out of control a drunk person can be physically and emotionally. Marijuana doesn't cause even a fraction of the trouble alcohol does.

Glad to see they're getting in front of it though.

 

[Sam1911]

why wouldn't they let them keep their guns ?

Again, it goes to the difference and overlapping jurisdictions between federal and state law.

There is no federally lawful way (practically, for 99.9999% of users) to possess or imbibe marijuana, at all. Doing so, at all, makes you a prohibited person, unable to buy or possess firearms.

IL can say that imbibing and possessing marijuana doesn't violate their state laws, but they cannot declare you NOT a prohibited person, able to have firearms under federal law.

From their point of view, one of the conditions of holding an IL FOID card is that you are NOT a prohibited person, ergo, their relaxing of state MJ laws doesn't make you OK to have guns in IL.

 

[sonick808]

the federal/state/4473/licit/illicit thing is definitely a mess.

I suspect we will see some sort of action to place cannabis in CII or CIII DEA classification; that would at least rectify the overarching illicitness of a CI classification vs. state law permission.

just tax the heck out of the stuff and let's shore up our infrastructure, we are in dire need of repairs and upgrades to all of our vital systems.

 

[Comrade Mike]

Maybe there's a catch. You can keep your guns but you can't buy more because of the 4473 questions.

 

[Frank Ettin]

Maybe there's a catch. You can keep your guns but you can't buy more because of the 4473 questions.

Oh gee! NO! Doesn't anyone read the thread?

See post 16:

...

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.

...

 

[9thchild]

I asked what it actually had to do with owning guns, not what some unconstitutional federal law says.

 

[Frank Ettin]

I asked what it actually had to do with owning guns, not what some unconstitutional federal law says.

In the real world a law is not unconstitutional until the Supreme Court says so. Your opinion doesn't count.

So your question was answered.

 

[NavyLCDR]

I asked what it actually had to do with owning guns, not what some unconstitutional federal law says.

In the real world a law is not unconstitutional until the Supreme Court says so. Your opinion doesn't count.

So your question was answered.

And, again, where is the law prohibiting the OWNERSHIP of guns if the owner is a marijuana user? Let's say I own a large collection of guns, which I am lawfully able to possess until such time as I choose to obtain a prescription for marijuana and intend to become a user. My wife buys a gun safe that only she knows the combination to and locks all my guns up. I obtain my "medicine" and begin to use it. I still OWN the guns in the safe. I just cannot possess them.

At some time later on, I decide the new "medicine" isn't working for me, and I stop using it, then I can possess those guns again. Or, if I decide that I want the "medicine" more than the guns, my wife can sell them for me, give me the money, since I owned the guns, and it's all legal so long as I was never in possession of the guns.

 

[Frank Ettin]

I asked what it actually had to do with owning guns, not what some unconstitutional federal law says.

In the real world a law is not unconstitutional until the Supreme Court says so. Your opinion doesn't count.

So your question was answered.

And, again, where is the law prohibiting the OWNERSHIP of guns if the owner is a marijuana user? Let's say I own a large collection of guns, which I am lawfully able to possess until such time as I choose to obtain a prescription for marijuana and intend to become a user. My wife buys a gun safe that only she knows the combination to and locks all my guns up....

Yes, a prohibited person may have legal title to a gun as long as he has no access to it and can not physically possess it. If that's what the poster meant, you're correct.

However, many people are much less precise in their use of words, and many people tend to use "own" and "possess" somewhat interchangeably.

So to be clear, a prohibited person, including someone who uses marijuana, may not under federal law have lawful possession, including constructive possession of, or access to, a gun, whether or not he owns the gun. A prohibited person may legally own a gun, but only as long as he has no access to or possession of the gun.

 

[9thchild]

I disagree Frank. States can nullify unconstitutional laws. Individuals can also, to some extent.

I would imagine there are millions upon millions of U.S. citizens that both consume cannabis and own/possess firearms. Again I beg the question, what does the consumption or possession of cannabis have to do with owning a gun? I just don't get it. Certainly you shouldn't be operating weapons or other potentially dangerous things if you are impaired, but that seems to go without saying don't you think?

 

[RetiredUSNChief]

I disagree Frank. States can nullify unconstitutional laws. Individuals can also, to some extent.

I would imagine there are millions upon millions of U.S. citizens that both consume cannabis and own/possess firearms. Again I beg the question, what does the consumption or possession of cannabis have to do with owning a gun? I just don't get it. Certainly you shouldn't be operating weapons or other potentially dangerous things if you are impaired, but that seems to go without saying don't you think?

Really?

Show me where this is done on anything approaching a practical example.

And there's a difference between "nullify" and "do not enforce". If the state chooses not to enforce a federal law, that is not "nullification". The federal authorities can still choose to enforce it.

 

[Frank Ettin]

...I disagree Frank. States can nullify unconstitutional laws. Individuals can also, to some extent...

Let's see some actual evidence. You are simply wrong.

...I would imagine there are millions upon millions of U.S. citizens that both consume cannabis and own/possess firearms...

Again let's see some actual evidence. In any case, that only means that those people are violating federal law. If they are caught and prosecuted, they will be vary unhappy about how things turn out.

There's a difference between violating the law and not getting caught and acting within the law. At THR we help people understand what the law is, how it works and how it applies. Illegal conduct can have very undesirable consequences. Understanding what the law is, how it works and how it applies helps folks make good decisions.

A lot of people now in prison probably thought they wouldn't get caught.

....what does the consumption or possession of cannabis have to do with owning a gun? I just don't get it. ...

Now you appear to be asking whether the law ought to be what it is, and that's a different matter entirely. It is to some extent irrelevant. The law is what it is, and there have been successful federal prosecutions of persons for being illegal users of a controlled substance in possession of firearms.

If you think the law ought not be that way, you have the opportunity under our system to become politically active and try to change the law.

 

[9thchild]

States can pass laws making it illegal to enforce federal laws. Two recent examples: Missouri (and others) RE federal gun laws, Colorado and Washington RE federal pot laws. Arguably (and accurately IMO) the federal government doesn't actually have constitutional authority in these two areas in the first place. If the Feds do it anyway, there may end up being a legal battle about a concept called "preemption." But as we've seen, the Feds backed down.

Individual nullification would simply be not obeying. Obviously that is risky business but it is done every single day. If you're buying a handgun and you smoke pot, what are you gonna do, check yes on the form? No! You're going to check no. How about smoking pot in the first place? Aren't citizens in CO and WA individually nullifying the federal law when, by the hundreds of thousands, they ignore it?

Despite all the nonsense in the media and what you were taught in school, even law school, the SC was NOT designed to be the final arbiter of constitutionality. States are allowed to determine whether federal laws are constitutional.

 

[9thchild]

Frank you are ignoring the laws of standing. If you don't break a law in the first place you will never have standing to fight the constitutionality of the law. Let me break it down:

1. The federal govt. has no authority to regulate what I consume
2. Feds pass law saying I can't consume carrots even though it is legal in my state
3. I consume carrots anyway because i believe the law is unconstitutional

To me that is individual nullification. Now you may lose and end up in prison, but you are nullifying in the sense that you are not following the law because you believe (correctly) that it is unconstitutional.

EDIT: I am not advocating breaking any laws, just trying to make a point.

 

[Frank Ettin]

States can pass laws making it illegal to enforce federal laws. Two recent examples: Missouri (and others) RE federal gun laws, Colorado and Washington RE federal pot laws....

You are so wrong.

1. Some States have enacted laws ostensibly preventing state LEOs from enforcing certain federal laws. But those laws do not, and can not, prevent federal agents from enforcing federal laws.
   
   
2. The marijuana laws in Colorado and Washington State don't "make it illegal" to enforce federal laws. The merely make possession and use of marijuana in general lawful under state law. Use and/or possession of marijuana remains illegal under federal law in those states, and federal law remains enforceable by federal agents.
   
   
3. A good example of how this works comes out of Oregon. 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).

...Arguably (and accurately IMO) the federal government doesn't actually have constitutional authority in these two areas in the first place....

Well again, your opinion doesn't count. On the other hand, see the opinions of the Supreme Court in Wickard v. Filburn, 317 U.S. 111 (1942) and Gonzales v. Raich, 545 U.S. 1 (2005).

With regard to so called state firearm freedom laws, the first one to be tested in court lost in the Ninth Circuit (Montana Shooting Sports Association v. Holder, No. 10-36094, (9th Cir., 2013)).

...If the Feds do it anyway, there may end up being a legal battle about a concept called "preemption."...

And what exactly do you know about the legal concept of preemption? Let's see what the Founding Fathers said about preemption (Constitution of the United States, Article VI, emphasis added):

...This Constitution, and the laws of the United States which shall be made in pursuance thereof; ..., shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.....

See also Willis v. Winters, 253 P.3d 1058 (Or., 2011) and Montana Shooting Sports Association v. Holder, No. 10-36094, (9th Cir., 2013).

...But as we've seen, the Feds backed down. ...

Really? Where?

The handling of the marijuana issue by the federal government is a matter of "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 recreational or medical marijuana in a State which has legalized such, at least under some circumstances. Such a policy decision might be driven by a conclusion that enough people, particularly among an administration's constituency, find the conduct relatively benign. That might not be the case with other matters.

In any case, the feds haven't been giving marijuana a complete pass; for example see --

• "Obama Explains Increasing Medical Marijuana Crackdowns, Raids..."
  
  
• "U.S. raids L.A. marijuana shops..."
  
  
• "Southern Oregon medical marijuana farm raided by federal drug agents..."
  
  
• "2 Anaheim pot shops raided,..."
  
  
• "Sacramento marijuana dispensary latest target of federal crackdown"
  
  
• The fairly recent decision of the United States Supreme Court upholding federal regulation of marijuana in Gonzales v. Raich, 545 U.S. 1 (2005).

It appears that current federal policy is to forbear from prosecuting cases of medical (or recreational) marijuana use where legal under state law. That is a matter of prosecutorial discretion and may change at anytime. And there is no reason to assume that forbearance will extend to marijuana users for unlawful possession of firearms or ammunition.

...Individual nullification would simply be not obeying....

No, that's simply being a criminal. It's kind of like all the crooks who are "nullifying" the laws against robbery by holding up convenience stores.

...Aren't citizens in CO and WA individually nullifying the federal law when, by the hundreds of thousands, they ignore it?...

No, they're simply being criminals.

...Despite all the nonsense in the media and what you were taught in school, even law school, the SC was NOT designed to be the final arbiter of constitutionality. States are allowed to determine whether federal laws are constitutional.

Nonsense. See Article VI of the Constitution.

In fact, the U. S. Supreme Court has consistently rejected State attempts to nullify federal law. See:

1. United States v. Peters, 9 U.S. (5 Cranch) 115 (1809)
   
   
2. Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304 (1816)
   
   
3. Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821)
   
   
4. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819)
   
   
5. Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738 (1824)
   
   
6. Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832)
   
   
7. Prigg v. Pennsylvania, 41 U.S. 539 (1842)
   
   
8. Ableman v. Booth, 62 U.S. 506 (1859)
   
   
9. Cooper v. Aaron, 358 U.S. 1 (1958)
   
   
10. Bush v. Orleans Parish School Board, 188 F. Supp. 916 (E.D. La. 1960), aff'd 364 U.S. 500 (1960).

And the Founding Fathers did assign jurisdiction to decide such matters to the federal courts. See the Constitution of the United States, Article III, Sections 1 and 2:

Section 1. The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. ...

Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution,...

...To me that is individual nullification. Now you may lose and end up in prison, but you are nullifying in the sense that you are not following the law because you believe (correctly) that it is unconstitutional....

Preposterous. If you're in prison, the law has been applied; and your belief has been tested and found to be fantasy in real world terms.

...I am not advocating breaking any laws, just trying to make a point.

And the point that you've made is that you don't have any idea what you're talking about.

 

[9thchild]

You win.

I still maintain my original point: cannabis consumption has absolutely nothing to do with owning, possessing, or carrying a firearm. The fact that our current laws don't reflect that is looney toons.