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NFA only applies to legal gun owners

Discussion in 'Legal' started by Ru4real, Apr 16, 2018 at 8:07 AM.

  1. Ru4real

    Ru4real Member

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    Suppose someone smokes pot and fills out a 4473 saying they don't. It's illegal to lie on a 4473 per 18 USC 922(a)(6).

    Here is the big, SO WHAT, if someone smokes pot, can they lawfully purchase and lawfully possess? I don't know.

    Interesting read from Wikipedia - Haynes v. United States.

    The National Firearms Act was amended after Haynes to make it apply only to those who could lawfully possess a firearm.

    The National Firearms Act of 1934 required the registration of certain types of firearms. Miles Edward Haynes was a convicted felon who was charged with failing to register a firearm under the Act. Haynes argued that, because he was a convicted felon and thus prohibited from owning a firearm, requiring him to register was essentially requiring him to make an open admission to the government that he was in violation of the law, which was thus a violation of his right not to incriminate himself.

    In a 7-1 decision, the Court ruled in 1968 in favor of Haynes. Earl Warren dissented in a one sentence opinion and Thurgood Marshall did not participate in the ruling.

    This eliminated prosecution of prohibited persons, such as criminals, and cured the self-incrimination problem.
     
  2. wahsben

    wahsben Member

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    Yes criminals have more rights and are treated better than gun owners. It's disgusting!
     
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  3. WestKentucky

    WestKentucky Member

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    So, if they are prohibited and regain their rights through legal process, then are they once again subject to the law, or would their previous misdeeds be grandfathered in?

    Yes I realize how screwed up this question is.
     
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  4. Art Eatman

    Art Eatman Administrator Staff Member

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    The way the laws are written, if you smoke pot you're disallowed firearm ownership. Lying on a 4473 compounds your problems.
     
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  5. AlexanderA
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    AlexanderA Member

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    The Haynes case was one of the reasons for the 1968 NFA amnesty. That basically started the Registry anew.

    Possession by a felon is a crime in and of itself. Never mind if he tries to register the gun.
     
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  6. Frank Ettin

    Frank Ettin Moderator

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    No, if one is a user of marijuana, even if his use is legal under the laws of the State in which he is present, he may not lawfully acquire or possess a firearm or ammunition under federal law.

    The marijuana issue has been discussed multiple times on this board, including here, here, here, and here.

    Haynes is distinguishable.

    It was a crime for Haynes to possess the gun (a short barrel shotgun), but is was also a crime for Haynes to fail to register it. So essentially threatening Haynes with prosecution for failing to register the gun was effectively compelling him to admit to committing the crime of possessing the gun. So in the Haynes situation:

    • The actor admits to a crime by registering the gun, and

    • the actor commits a crime by not registering the gun.

    But in the case of a marijuana user:

    • If he chooses to buy a gun at a dealer, he will admit to committing a crime by answering question 11(e) truthfully,.

    • But no law requires that he buy a gun, and he commits no crime by not buying a gun. So he is under no legal compulsion to buy a gun and answer the question.

    That is not accurate.

    In 1968, the NFA was amended by the addition of 26 USC 5848 providing, in pertinent part:

    So nothing obtained from the registration of a gun could be used in the prosecution of a charge of unlawful possession. But someone who unlawfully possesses a gun can still be prosecuted and convicted based on evidence obtained in other ways. That cures the self-incrimination problem and still allows prosecution for unlawful possession.

    Also, since registration no longer involves self-incrimination, it appears that one unlawfully possessing an unregistered NFA item can be prosecuted for failing to register it. That's similar to the income tax situation. Income tax is payable on profits from illegal activities, and a failure to pay that tax may be prosecuted. But a tax return showing income derived from illegal activities can not be used to prosecute the filer for those activities (although he may still be prosecuted for those activities based on evidence obtained from other sources).
     
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  7. danez71

    danez71 Member

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    Can you do.me a favor and pointe to the 'possess' part?

    I got into a discussion with someone recently at work and I couldn't readily cite it to make my point.
     
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  8. Theohazard

    Theohazard Member

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  9. Frank Ettin

    Frank Ettin Moderator

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    Did Theohazard's post do the job for you, or do you need something more?
     
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  10. Ru4real

    Ru4real Member

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    And so we've finally made it the long way home.

    If you are an occasional pot user in your own home, it's within your right to answer NO on the 4473 because:
    1. You have no obligation to self incriminate when purchasing per Haynes
    2. Unlawful pot user nor time since last use is not defined in 21 U.S.C. § 802
    3. Addict is defined in 21 U.S.C. § 802 as: term "addict" means any individual who habitually uses any narcotic drug so as to endanger the public morals, health, safety, or welfare, or who is so far addicted to the use of narcotic drugs as to have lost the power of self-control with reference to his addiction.
     
    Last edited: Apr 17, 2018 at 6:33 AM
  11. Ru4real

    Ru4real Member

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    Just make sure you demand a jury trial to help your common sense argument along.

    It's time to take back the asylum from the inmates and Jury Nullification is the vehicle to do just that.
     
  12. edwardware

    edwardware Member

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    Let me be the first to say. . . R u 4 real?

    I don't believe that the prohibition against the government forcing you to self-incriminate could possibly be stretched to permit perjury on your part. That's akin to claiming that you can lie in court (perjury) because the government can't force you to incriminate yourself; that's silly.

    The prohibition against forced self-incrimination prohibits the government from forcing you to speak (or write). Once you choose to speak you're still legally obligated to speak the truth. If you don't want to speak the truth, you're legally permitted to not speak, but not to lie.
     
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  13. danez71

    danez71 Member

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    Theo, Frank, thank you. That's perfect and I'll book mark it.

    The person I was talking to just last friday kept referencing the 4473 and saying its only illegal when buying a gun; not possession.
    I didn't have anything handy to show him and didn't want to spend my lunch time finding it.

    It was one of those conversations where he was saying we need more laws and me saying 'that's already illegal'. So this is a timely thread (drift).

    Thanks again.
     
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  14. hdwhit
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    hdwhit Member

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    Just download a copy of 18 USC 922 onto your phone. That way you will always have it immediately available and it will answer 80% of the questions you're likely to come across.
     
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  15. dogtown tom

    dogtown tom Member

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    Where you smoke pot has no bearing on the illegality under Federal law.
    Further, your conclusion is so absolutely, flat out, laughably wrong as to be criminal itself.


    You didn't understand a single thing Frank wrote above did you?
    Haynes doesn't apply to VOLUNTARILY filling out a Form 4473.


    Then maybe you should do a bit more research and discover where it is defined.;)



    One does not have to be an addict, merely the UNLAWFUL USE of marijuana is a prohibitive factor.
     
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  16. Ru4real

    Ru4real Member

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    Suppose you smoked pot, once, in 1968 because everyone else said they were smoking. (I wasn't alive in 1968; I've heard stories)

    What do you answer on a 4473 for a 2018 purchase? Rather, 50 years later. How about 5 years later?
     
  17. Frank Ettin

    Frank Ettin Moderator

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    You are terribly ignorant, don't understand law, and are incompetent at legal research. Post less; read more; and get an education.

    Hogwash.
    1. Where you smoke (or otherwise use) your marijuana has nothing to do with it. It is illegal under federal law to possess or use marijuana anywhere in the United States, including your home.

    2. Since you are not legally compelled to buy a gun Haynes has absolutely nothing to do with answering the questions on the 4473.

    No, but it is defined at 27 CFR 478.11:

    See also U.S. v. Burchard, 580 F.3d 341 (6th Cir., 2009) in which the Sixth Circuit found that (at 355):
    would support conviction under 18 USC 922(g)(3).

    Which is completely irrelevant to a charge of being an unlawful user of a controlled substance in possession of a gun or ammunition in violation of 18 USC 922(g)(3). See above.

    What common sense argument? Are you aware that there are rules regarding how and what may be argued in court? Arguments to the judge on matters of law will generally be made out of the jury's presence. Arguments to the jury must be based on the law and the evidence.

    Good luck with that.
     
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  18. Ru4real

    Ru4real Member

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    I apologize for asking you the previous post questions. You stated a conclusion is criminal (ahead of an action, which may be a crime in Russia but not in USA). Clearly this question should have not been asked to you.
     
  19. Ru4real

    Ru4real Member

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    I'll ask you instead, Frank.

    Suppose you smoked pot, once, in 1968 because everyone else said they were smoking. (I wasn't alive in 1968; I've heard stories)

    What do you answer on a 4473 for a 2018 purchase? Rather, 50 years later. How about 5 years later? How close is close? Not up to me or you, only someone in a black robe.
     
    Last edited: Apr 17, 2018 at 1:19 PM
  20. <*(((><
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    <*(((>< Contributing Member

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    1. Federal law prohibits use of marijuana both medicinally and recreationally (Controlled Substances Act (CSA) (21 U.S.C. § 811)
    2. Form 4473 specifically states a "user" of marijuana. Which implies current use I would presume. So I would feel that if you got caught with a gun and marijuana could be found in your system you would be breaking federal law. I would assume those who are no longer a user and the indiscretions in ones youth would be out of their system.

    I'm no lawyer but that is my understanding. Frank Ettin would be the best person to dialogue with on this, but he'll make you do your homework :D. And rightfully so.
     
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  21. Carl N. Brown

    Carl N. Brown Member

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    Under Haynes a criminal can be prosecuted for criminal possession and use but not for failure to register. Since failure to register would be a very lesser included offense any way, it really was not a big loss to federal prosecutors.

    Last time I checked ATF FAQ, a person prohibiting from buying a gun is also a person prohibited from buying, owning or selling firearms or ammunition. (checked: yes, the link in Post #8 covers it).

    That includes someone who is a current user of marijuana. Possession of a medical marijuana card is taken by ATF as evidence one is a current user. ATF rejects the argument that one might possess an MMJ as a collectible curio or relic.

    ATF does not regard past use of marijuana as evidence of current use of marijuana. Or past possession of a MMJ card for that matter.
     
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  22. Frank Ettin

    Frank Ettin Moderator

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    See the definition I cited and quoted in post 17:

    And the ruling in Burchard:

    So 50 years would get you a pass, and even 5 years should get you a pass. Six months or a year? That could be up to a jury, and there would be no guarantees.
     
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  23. CapnMac

    CapnMac Member

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    Perhaps an anecdote for my Reserves time will assist ru4real.
    The distinction requires rational, impersonal, logic.

    If, say, you are over at Ted's house six weeks ago for supper, and Ted and the guys go outside to share some "contraband" and you sneak away from the wife to join them. And take a drag of the passed-around cigar to discover the contraband is not, in fact, Cuban. So, you decline any more and return indoors. Did you commit an error--yes. Did you stop doing so on discovery--yes. This is probably good. Probably.
    If, instead, six weeks ago, to celebrate passing the company drug testing, you go raid your kid's stash, and power the entire ounce down in his bong waiting on the pizza you ordered. Did you commit an error--yes. Did you stop on discovery--no. Did you, in fact, premeditate this entire evolution for your own satisfaction--yes. Not a casual use, or even experimentation, but full-on use. You're burned. Repeated volition, deliberate choices, each of which requiring a conscious decision to do what you shouldn't. Equals not cool dude..
     
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  24. easy

    easy Member

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    Simple answer for the over tinkers - don't smoke/use MJ.
     
  25. Spats McGee

    Spats McGee Moderator

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    First, if we're going to discuss Haynes, let's discuss Haynes, not some Wikipedia article about Haynes. I've attached a copy of the decision. For a long time, I thought Haynes was a convicted felon, but I don't think that's actually the case. If I'm wrong, someone feel free to correct me.

    From the decision: Haynes "was charged by a three-count information filed in the United States District Court for the Northern District of Texas with violations of the National Firearms Act. 48 Stat. 1236. Two of the counts were subsequently dismissed upon motion of the United States Attorney. The remaining count averred that petitioner, in violation of 26 U.S.C. s 5851, knowingly possessed a firearm, as defined by 26 U.S.C. s 5848(1), which had not been registered with the Secretary of the Treasury or his delegate, as required by 26 U.S.C. s 5841. Petitioner moved before trial to dismiss this count, evidently asserting that s 5851 violated his privilege against self-incrimination, as guaranteed by the Fifth Amendment. The motion was denied, and petitioner thereupon entered a plea of guilty. The judgment of conviction was affirmed by the Court of Appeals for the Fifth Circuit. 372 F.2d 651. We granted certiorari to examine the constitutionality under the Fifth Amendment of petitioner's conviction. 388 U.S. 908, 87 S.Ct. 2130, 18 L.Ed.2d 1347. For reasons which follow, we reverse." Haynes v. United States, 390 U.S. 85, 86–87, 88 S. Ct. 722, 724–25, 19 L. Ed. 2d 923 (1968)

    " . . . . (g) It shall be unlawful for any person-- . . . .(3) 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)); . . . .to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce." 18 U.S.C.A. § 922 (West)

    Even though these have been addressed, I have to say: Not one bit of the above entitles you to lie on the 4473. If you feel like smokin' a bowl, and then being the test case, feel free. I'll be glad to monitor your appellate case.
     

    Attached Files:

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