Marijuana

The Price of Pot: $45 per Eighth, Plus Your Second Amendment Rights

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KOMO-TV

KOMO, the ABC affiliate in Seattle, notes the ticklish situation confronting gun owners who might like to try some newly legal marijuana after Washington's state-licensed pot stores begin opening next month: If they do so, they lose their Second Amendment rights. Or so says the Gun Control Act of 1968, which makes it illegal for an "unlawful user" of "any controlled substance" to own a gun. KOMO describes the case of Bobbi Jo Floyd, a Richland resident who was denied a handgun carry permit a few months ago because she was known to be a medical marijuana user. Floyd's experience illustrates what happens when increasingly open cannabis consumption collides with a federal gun restriction that until now has rarely been enforced.

Under federal law, cannabis consumers who possess firearms or ammunition are committing a felony punishable by up to 10 years in prison. Likewise anyone who sells or otherwise transfers a gun to a person he knows or has reasonable cause to believe is a cannabis consumer. There is also a penalty of up to a year in jail for falsely denying, on the form you have to fill out when you buy a gun from a federally licensed dealer, that you are "an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance."

Survey data indicate that something like 30 million Americans have consumed marijuana in the last year. Another 9 million or so have illegally consumed other controlled substances (which would include, e.g., taking a painkiller prescribed for a relative). Since people are not always candid when asked about illegal behavior, even in a confidential survey, the true numbers are probably somewhat higher. But conservatively we're talking about at least 15 percent of American adults who are officially disqualified from owning firearms because of the psychoactive substances they consume, with marijuana being by far the most popular.

Usually this rule has no practical effect. You lie on the form (or, in the case of a private transfer, do not fill out a form at all), and who's to know? But occasionally a gun owner's marijuana use (or a marijuana user's gun ownership) comes to the attention of a government official with the power to do something about it. That is what happened to Floyd, who in January applied to the Richland Police Department for a concealed pistol license (CPL). When she filled out the CPL application form, she said she was not "an unlawful user" of marijuana, since Washington has allowed cannabis consumption for medical purposes since 1998 (and for recreational purposes since 2012).

According to a 2011 directive from the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), that was the wrong answer. In a letter to federally licensed firearm dealers, Arthur Herbert, the ATF's assistant director for enforcement programs and services, explained that "any person who uses or is addicted to marijuana, regardless of whether his or her State has passed legislation authorizing marijuana use for medicinal purposes, is an unlawful user of or addicted to a controlled substance." 

Still, as long as no one knew that Floyd was a cannabis consumer, that fact would not have stopped her from obtaining a CPL. But someone did know. KOMO reports that a police department employee recognized Floyd, "an outspoken proponent of medical marijuana," and asked her to include a copy of her medical authorization with her application. A couple of weeks later, Floyd received a notice that her application had been rejected. Richland Police Chief Chris Skinner explained in a letter that under federal law Floyd is not even allowed to own a gun, let alone carry one in public. In effect, since it was Floyd's activism that tipped off the police, she lost her Second Amendment rights because she exercised her First Amendment rights. "I was incredibly angry because I was being honest," Floyd tells KOMO. "I had done nothing wrong."

Floyd has been talking to attorneys about challenging Skinner's decision in court. "I'm a Republican," she says, "and I believe in my guns." Medical marijuana patients in neighboring Oregon who were denied carry permits because of their cannabis consumption successfully pursued such a case all the way to the Oregon Supreme Court, which in 2011 ruled that the Gun Control Act does not pre-empt the state law that establishes the requirements for a permit. Those criteria do not include abstaining from marijuana, which Oregon recognizes as a medicine. In 2012 the U.S. Supreme Court declined to hear Jackson County Sheriff Michael Winters' appeal of that decision.

Unlike those Oregon patients, Floyd does not seem to have a very strong basis for challenging the rejection of her CPL application under state law. Washington, like Oregon, is a "shall issue" state, meaning gun owners can obtain carry permits as long as they meet certain objective criteria. But Washington's law, unlike Oregon's, disqualifies any applicant who is "prohibited from possessing a firearm under federal law." Hence the Washington State Department of Licensing lists marijuana use in the last year as grounds for rejecting an application.

What about a Second Amendment challenge? As Brian Doherty reported here a few months ago, a Nevada medical marijuana patient, Rowan Wilson, has so far been unsuccessful in arguing that the ban on gun ownership by cannabis consumers violates the Second Amendment. A federal judge rejected that argument in March, noting that the U.S. Court of Appeals for the 9th Circuit, which includes Washington as well as Nevada, upheld that provision of the Gun Control Act in the 2011 case U.S. v. Dugan. Wilson's lawyer, who intends to appeal, argues that Dugan was weakly reasoned and should be reconsidered.

Meanwhile, Floyd and every other gun-owning cannabis consumer remain felons in the eyes of the federal government. That fact could be a source of serious mischief if Barack Obama or his successor adopts a more confrontational approach to state laws allowing medical or recreational use of marijuana. Even without a shift in federal policy, misguided state officials may force patients to choose between their medicine and their Second Amendment rights, as happened in Illinois this year before a public outcry forced a reversal. In that case, gun rights advocates united with drug policy refomers to oppose a requirement that medical marijuana patients turn in their guns. We will need more such alliances to make sure that the right to keep and bear arms does not disappear in a puff of pot smoke.

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  1. …a police department employee recognized Floyd, “an outspoken proponent of medical marijuana,” and asked her to include a copy of her medical authorization with her application.

    That’s what you get for shooting your mouth off about making things that are crimes no longer criminal.

    Anyway, the state will only allow you so many vices. You can have guns or you can get high. Take your pick.

    1. But you can still get sh#t-face drunk and shoot your guns. Seems wrong to me.

  2. “I was incredibly angry because I was being honest,”

    And that was your first and ultimate mistake. Always, always, always lie to the government and bureaucrats. Always. Tell them exactly what they expect to hear. Be as ordinary as possible. Don’t make them have to think for even a microsecond.

    1. Yep. It’s easy to be ignored when you don’t draw attention to yourself. But when you’ve got some government asshole’s attention, it’s nearly impossible to shake it.

      1. And don’t confuse them or introduce any factors that aren’t expressly covered by the rules. The last thing in the world a bureaucrat ever wants to do is make a decision or stick their neck out. If you do, they will slam on the brakes and kick it up the ladder or just outright refuse you, because they are going to cover their ass first and foremost.

        But as you say, the best thing to do is just never attract their attention in the first place, for any reason.

        1. And don’t lock eyes with ’em, don’t do it. Puts ’em on edge. They might go into berzerker mode; come at you like a whirling dervish, all fists and elbows. You might be screaming “No, no, no” and all they hear is “Who wants cake?” Let me tell you something: They all do. They all want cake.

    2. Those “Yes” boxes on the background check form are not there for checking. I don’t know why they are even there. Any one automatically disqualifies you, doesn’t it?

      1. They mix it up a little. If memory serves, there’s a couple where checking “No” disqualifies you.

    3. Unless the situation dictates that it would be better to plead the 5th… Always, always, always lie to the government and bureaucrats. Always.

      Nothing kills your credibility as an average citizen faster than adding ‘perjurer’ to the list of possible charges; pot-smoking, gun-owning, perjurer.

      1. Unless you’re a cop. Then perjury is a resume enhancer. Oh, you said average citizen. Never mind.

  3. Floyd tells KOMO. “I had done nothing wrong.”

    Malum prohibitum FTW.

  4. That fact could be a source of serious mischief if Barack Obama or his successor adopts a more confrontational approach to state laws allowing medical or recreational use of marijuana.

    This is Daley machine politics we’re talking about here. No need for anything more than information (or even an anonymous allegation), and the corruptocrats will loose the hounds on you. As in “We had a credible report, which we cannot disclose because it was a confidential informant, that Mr. Sullum used marijuana. We also know, through various databases that we cannot disclose because national security, that Mr. Sullum owns a gun. See you in ten years, Jake.”

  5. KOMO, the ABC affiliate in Seattle, notes the ticklish situation confronting gun owners who might like to try some newly legal marijuana after Washington’s state-licensed pot stores begin opening next month: If they do so, they lose their Second Amendment rights.

    Wait a second now, I brought this shit up months ago and I seem to remember the concept got waved off.

    1. Pffftt… that’ll never happen.

      1. Good to know though.

        The question I asked to the group was, would it be wise to purchase legal weed because that would logically deny you the right to own a firearm?

        This answers my question. Not only no, but fuck no. Someone else can go into the store and buy it, on their ID, but I will never ever engage in a legal marijuana transaction.

        1. “Legal” could use some scare quotes, since it’s not legal at all. I don’t lose my 2nd Amendment rights for purchasing a candy bar at the local store, so what is that? Super legal?

  6. That fact could be a source of serious mischief if Barack Obama or his successor adopts a more confrontational approach to state laws allowing medical or recreational use of marijuana.

    Feature, not bug. Obama will embrace legalized marijuana at the state level, while leaving it a crime at the federal level. This way, gun control is implicitly applied by virtue of purchasing legal weed.

  7. you know back in the day you could get an ounce for $40 and that was decent stuff. Inflation calculator claims that should still go for under $150

  8. Just 9 million people who borrowed a relative’s codeine cough syrup to get some sleep at the onset of a cold? LOL. I guarantee that alone is 50M in the last year.

  9. This fine with me so long as anyone that is in possession of ANY alcoholic beverage is not allowed to have any firearms. Seems fair to me.

    1. Fuck you, fascist.

  10. Don’t forget it was the exercise of a First Amendment right that led to the loss of a Second Amendment right. It’s a shame the Ninth Amendment doesn’t cover substances you want to put in your body, like unpasteurized milk and cheese aged on wood.

  11. I saw this coming years ago. Tried to warn people, but I guess they were too stoned to believe me. Next it will be veterans who will be denied 2nd amend rights because, ‘they may snap due to the horrors they witnessed’, or because they take a Xanax every now and then. The gov. will justify it saying, ‘We really can’t risk it’. Mark my words folks. Just because you’re paranoid doesn’t mean they aren’t out to get you.

  12. Red Tony: “Only white, heterosexual Christian males have second-amendment rights. Everyone else can go fuck them selves.”

  13. I’m sure my Washington State Democrat Senators will get right on this and correct the situation.

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