Weed & Guns

Medical pot vs. Second Amendment

Daveybot / Foter

Rowan Wilson had a Nevada state permit for medical marijuana. When she set out to buy a gun in 2011, she visited the shop of a licensed dealer who knew she had the permit and refused to sell her a firearm. The Bureau of Alcohol Tobacco Firearms and Explosives (ATF), it turns out, considers a medical marijuana permit holder to be an "unlawful user of or addicted to" a "controlled substance" and thus barred from legally purchasing guns.

Wilson thought that policy violated her Second Amendment rights in addition to her Fifth Amendment rights to due process, since it declared her an unlawful user of drugs despite a lack of any evidence beyond the possession of a permit to use medical marijuana. Her 2011 suit challenging the policy, Wilson v. Holder, got hobbled in March when U.S. District Court Judge Gloria Navarro upheld a government motion to dismiss the case.

Navarro's decision relied on a 2011 9th Circuit case U.S. v. Dugan, which denied that the Second Amendment applies to drug users, as they "more likely will have difficulty exercising self-control."

But does having a permit for state-legal medical marijuana offer sufficient evidence that you are a drug user or addict? Navarro's curious reasoning implied that since drug users don't have a "constitutionally protected liberty's interest" in gun possession, Wilson has no procedural rights at issue. In other words, drug addicts have no Second Amendment rights, so it doesn't matter what process we use to decide someone is an addict.

Wilson's lawyer Chaz Rainey says Dugan was about someone "dealing in massive amounts of controlled substances," a situation not analogous to Wilson's mere permit-holding. Wilson intends to appeal the dismissal.

Comments

[Res Publica Americana]

The day the BATshitFE is abolished and all of its employees are permanently barred from public employment will be a day for the history books and fuckloads of alcohol.

[BakedPenguin]

A day for drinking, smoking, and going to the range with friends.

Although maybe not in that particular order.

[pan fried wylie]

Left out the fireworks.

[sage]

...a 2011 9th Circuit case U.S. v. Dugan, which denied that the Second Amendment applies to drug users, as they "more likely will have difficulty exercising self-control."

Based on that, we should disarm all these boozing cops we have on the beat, amirite?

[derpules]

and anyone with a prescription because drugs, or something

[Rhywun]

And nicotine and caffeine addicts.

[Rich]

And people who keep digging the country into ridiculous debt.

[sarcasmic]

When I dropped off the stepkid this afternoon, his cop father was sitting outside with his woman. And boy did he look like he was in a mood. They both did. Normally he politely waves back, but today he just glared. I pity anyone who runs into him at work tonight. He's likely to take it out on the first person who fails to obey.

[Francisco d'Anconia]

Well, you knew it was coming, right? Was there any doubt?

[Paul.]

Knew it was coming. Long time.

[sage]

"You can have your pot. You can have your guns. You can't have both."

-Our not-at-all overreaching executive branch, ladies and gents. I guess we should be thanking them for "letting" us have either.

[Toki Wartooth]

At least you can keep your health care plan....

[juris imprudent]

This could eventually get interesting - the CSA is grounded in a dodgy extension of the commerce clause, and well, the 2nd - we know how the left in general feels about that.

Of course "penal-tax" Roberts can probably conjure up a rationale to justify the status quo.

[Ken Shultz]

In this case, the gun dealer knew the buyer personally. My understanding is that this wasn't a case of a background check interfacing with a state database of people with medical marijuana cards. The seller knew the buyer personally and that the buyer had a marijuana card.

But I'd like to understand whether backgrounds checks are meant to interface with state databases for medical marijuana in the future, and I'd also like to know whether there's any problem doing this in reverse order.

If you're on the record for having purchased a gun, and then, subsequently, you get a medical marijuana card from the state (instead of the other way around), can the state come back to you and confiscate your gun retroactively?

When you get a medical marijuana card, are you obligated to surrender any guns you previously purchased under federal law?

[Francisco d'Anconia]

Ken, do you really need to ask those questions?

[Ken Shultz]

Yes!

Have they been answered?

When people are busted on marijuana possession charges, do they routinely have their guns confiscated?

Does being prescribed an opiate like Demerol trigger the same procedures? If gun sellers know your doctor prescribed you Valium, are gun sellers prohibited from selling you a gun? Are you required to surrender any previously purchased guns?

How many previously purchased guns have been confiscated from marijuana card holders? Do any states specifically keep their marijuana card holders database confidential from the federal government? Does being in a marijuana card holders database show up on a background check when you buy a gun?

If you defend yourself with a gun that you purchased before getting a medical marijuana card, can the federal government come after you? If you're tried for defending yourself with a gun that you purchased before getting a medical marijuana card, are they going to use the apparent illegality of your gun ownership against you with the jury?

Yeah, I want all those questions answered.

[Francisco d'Anconia]

Okay.

No we don't do those things all the time, but we certainly will get around to it in an attempt to further increase our power and limit your rights.

/the g

How's that?

[Ken Shultz]

Makes sense to me.

[Bo Cara Esq.]

Ken, here is the statute. It seems to apply to sellers/transferors of firearms rather than the recipients.

http://www.law.cornell.edu/uscode/text/18/922

[Ken Shultz]

I appreciate that. Thank you.

Reading around, it looks like some gun dealers, to protect themselves, are starting to ask people whether they're currently using medical marijuana.

It seems like the solution to part of this is: if you're going to go get a medical marijuana card and you want to own a gun? Buy the gun first and get the card second.

What the damn government can do to us retroactively is always an open question, I guess.

[juris imprudent]

Even better than MM, what is the meaning of this law in the context of CO and WA law? The best legal challenge should come from one of those states.

[Ken Shultz]

In those states, the state isn't keeping a database of people buying cannabis.

The government is keeping track of who buys a gun, and they're keeping a database of people who are buying (or growing their own) cannabis for medical reasons--and if they're saying you can't do both, then people on both lists have something to worry about.

If you're buying recreationally in Washington or Colorado, I don't think you're on a list. They ID you, but I don't think they're tracking customers in a database.

I don't know that law enforcement in any state or federally is comparing the two databases either, but if they aren't, there's certainly plenty of potential for that.

I've heard of people being targeted as cocaine dealers because they were caught with cocaine--and they had a registered gun. Apparently, it makes it easier to get a search warrant when the cops can show that you were busted for possession and you have a registered gun in your home.

The laws need to change. Cannabis needs to not be a Schedule I drug anymore, and the ATF needs to change, too.

Schedule I drugs are supposed to have no accepted medical use, and to say that about marijuana is simply inaccurate. As a treatment for people undergoing chemotherapy, at the very least, it has a medical use. And if making it legal in a state doesn't make that use "generally accepted", then I don't know what does.

[sarcasmic]

If you're buying recreationally in Washington or Colorado, I don't think you're on a list. They ID you, but I don't think they're tracking customers in a database.

Make sure to use cash. Those debit card transactions leave a mark.

-and they had a registered gun.

That was their first mistake. Registering it that is.

[sarcasmic]

And if making it legal in a state doesn't make that use "generally accepted", then I don't know what does.

When courts redefine marriage in states where voters have rejected it, does that make same sex marriage "generally accepted"?

[sarcasmic]

Buy the gun first and get the card second.

Or lie.

What the damn government can do to us retroactively is always an open question, I guess.

Not a lot. While gun dealers must keep records of sales, they are not required to submit them to a central database. Yet. Law enforcement can demand records as part of an investigation, but not for fishing expeditions. Yet. And those records only have to be held for a certain period of time, a year I believe. For now.

I learned this while listening to a piece on NPR on how terrible it is that all firearms are not registered.

[Ken Shultz]

"While gun dealers must keep records of sales, they are not required to submit them to a central database."

I wish I knew more about this, and I really am trying to learn stuff here, but if they're doing background checks federally, isn't the federal government keeping that information on who's applying to get a gun somewhere?

I believe the cops locally are often aware if anyone in the house they're going to (say, on a domestic disturbance) has a registered gun.

[sarcasmic]

isn't the federal government keeping that information on who's applying to get a gun somewhere?

It's possible, but I don't think there's an official database. At least not one that they will admit to having.

I believe the cops locally are often aware if anyone in the house they're going to (say, on a domestic disturbance) has a registered gun.

In places like Massachusetts where all legal handguns must be registered, yes. I purchased my handgun twenty years ago, and since then have moved around the state several times. There's no registration requirements in my state, so there's no way the cops know there is a gun in my house. And if I were to move to a state that does require registration, well, I guess I'd be the owner of an illegal gun.

[Cdr Lytton]

And those records only have to be held for a certain period of time, a year I believe.

Try 20 years. And if you close up shop, all 4473's under 20 years must be turned over to the ATF.

[sarcasmic]

NPR was wrong or misleading? There's a first.

[Uncle Jay]

I would recommend talking to gun shop owners to see what the rules are. If anyone would know, it would be them.

[Cdr Lytton]

Maybe. Or just look at the law and the ATF's website for their interpretation (which is mostly what matters, as wrong as that is).

27 CFR 478.129 - Record retention
http://www.law.cornell.edu/cfr/text/27/478.129

27 CFR 478.127 - Discontinuance of business
http://www.law.cornell.edu/cfr/text/27/478.127

[Redmanfms]

Well, shit, I should scrolled down.

[Redmanfms]

And those records only have to be held for a certain period of time, a year I believe. For now.

This has been wrong for a long time (like since 1968).

It doesn't specifically say it on the sheet, but it is alluded to under the asterisk, but when an FFL surrender his license he must submit the required retained records to the ATF Out of Business Records Center. Once there, who knows how long they are retained (probably forever).

Actually, here it is under 14.1.3.

[Paul.]

Reading around, it looks like some gun dealers, to protect themselves, are starting to ask people whether they're currently using medical marijuana.

Doesn't the form you fill out ask that in the broadest sense: Do you use any illegal drugs?

Marijuana is illegal at the federal level. So if you use medical marijuana that's "legal" in your state, you're using illegal drugs. QED.

[Bo Cara Esq.]

The District judge who dismissed the case is a Obama appointee. The 9th Circuit case she relied on was a unanimous one by a Bush, Reagan and Clinton appointee.

[Francisco d'Anconia]

Deny someone their Constitutional rights based upon something they MIGHT do in the future.

You MIGHT have a government induced nervous breakdown later in life...no guns for you.

The absurdity of such an argument astounds.

[Anonymous Coward]

the Second Amendment applies to drug users, as they "more likely will have difficulty exercising self-control."

Which drugs in particular? The non-government approved drugs? The government approved drugs?

[Francisco d'Anconia]

Why, whichever drugs we say, of course.

What, you want us to make you aware of the laws you're breaking PRIOR to your arrest? You obviously don't understand the function of government.

[Ted S.]

They have less trouble exercising self-control than government sector workers do.

[Pi Guy]

So do medical MJ permit holders still have the right to speak freely? Due process rights? Right to a jury trial? Are they secure in their persons and papers?

Nope. You only lose your Second Amendment rights. Gotcha.

[Dances-with-Trolls]

So do medical MJ permit holders still have the right to speak freely?

Sure, there's a free speech zone right over that way.

Due process rights? Right to a jury trial?

You can absolutely turn down the DA's plea deal and roll the dice on life in prison for your victimless crimes against the state.

Are they secure in their persons and papers?

Ha ha ha ha ha ha ha ha ha. What a kidder! This is America, remember? We live in a post 9-11 world, don't you know?

[Pi Guy]

Upon reflection, you're right. They're just not so overt with the others, I guess.

[Pi Guy]

Change 'Nope' to 'Yup,' if you would, por favor.

[Toki Wartooth]

Well even if appeals doesn't work out she can at least find some private seller to get one from, since they have no registration or permit system unless you live in Clark County.

[Dread Pirate Roberts]

That's the reward for trying to obey the law. Best to buy your weed from the black market.

[sarcasmic]

Sometimes that's easier said than done. I mean, if your connection dries up or gets busted and you need to find a new one, how do you do it? Especially if you work someplace where they'd fire you on the spot if they found out you smoke weed. Can't talk about it with your coworkers. When I used to work in restaurants that was never a problem. There was always at least one dealer at work. Now I rely on my neighbor, but he's not going to be around forever. After he's gone, I have no idea where I'll find black market weed. Hopefully it will be legal by then, but I'm not holding my breath.

[Zserve90]

Sounds like a very solid plan to me dude.

http://www.TotalAnon.tk

[teebonicus]

This is what happens when the courts have an unreasonable and unconstitutional bias against the right to arms.

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[fhgerfvdswe]

Wilson has no procedural rights at issue. In other words, drug