Legalized Marijuana and Firearms.

[igofast]

I have very much enjoyed the excellent dialog around this.

I was watching NatGeo this weekend where they were following Alaska's finest around. The officer pulled over someone and thru the course of events the passenger had a bag of weed as well as a (OMG loaded)firearm. The officer issued a citation for the weed("everyone in Alaska has a firearm") and stated to the camera something to the effect of there wouldn't be room in the jails if they arrested everyone they came across for marijuana possession so it's the department's stance to issue citations only.

Now, I don't know when the episode was shot, but assuming it was recently it seems to me that the information regarding firearms ownership and possession of a controlled substance being a federal crime is not getting down to the state level. If the Police are not enforcing this, then who? The DEA? The BATFE? It seems to me they have bigger fish to fry than the one-off gun owning pot user.

[Squib Joe]

I expect the 1937 Marijuana Act will be going the way of the Volstead Act in the very near future, the dominoes are falling fast

[Hmac]

I expect the 1937 Marijuana Act will be going the way of the Volstead Act in the very near future, the dominoes are falling fast

Marijuana Act of 1937 was overturned as unconstitutional in 1969 and was repealed by Congress in 1970 with the passage of the Controlled Substances Act.

[Frank Ettin]

...What's you're angle? I presume that you're "on our side",...

Well my angle these days is education. I'm with a group who teach monthly NRA Basic Handgun classes. We introduce about a 100 people a year to shooting -- almost all of whom have no prior experience. All of us instructors are NRA certified in various classes and all of us have considerable training such as multiple classes at Gunsite. None of us get paid, and our class fees cover just our expenses.

I also teach the legal segments for various other instructors putting on NRA Personal Protection classes. I've been an assistant instructor for Massad Ayoob. In the past I've helped teach beginning wingshooting classes and helped coach a youth trapshooting group competing in the NSSF sponsored SCTP.

I also try to help folks understand the realities of the law and the legal system so they can better stay out of trouble. I also try to add a dose of legal and political reality to these discussions.

That's my angle.

...so far all we've heard from you is how my observation that the government is violating the rights of the people is wrong....

The reality of this world is that the violation of rights is often in the eyes of the beholder. Forgetting that we live in pluralistic, political society in which people legitimately disagree on any number of matters is not a useful, and is a badly skewed, perspective.

Throughout our history there have been people who have complained that the actions of the federal government were inimical to the founding principles of our Nation and inconsistent with the proper scope of government. Throughout our history there have been people who have complained that the actions of state governments were inimical to the founding principles of our Nation and inconsistent with the proper scope of government. That sort of friction will be common to any organized society. Our Founders left us with a particular framework and process (a federal system, checks and balances and separation of powers) for managing that friction.

Often those who tend to be the most dissatisfied with the way the process is working are forgetting their own role in the process. We select the government. How effective are you at influencing your neighbors, the people in your community, your co-workers, etc., to join you in selecting representatives who will further the goals and values important to you? The system does allow for change, so you are even free to try to generate sufficient support to put into place an alternate system which might suit you better.

But ranting won't necessarily help. Understanding the political and legal process just might help. But the nature of a democratic republic is probably such that no one is going to be completely satisfied all the time.

[XDM45]

Mod Request: Make this thread "sticky" because:

- the entire thread has a lot of valid discussion on here.
- It contains opinions from a lawyer.
- it's unlike many threads on here in both subject matter and the quality of the information.

Thanks.

[steve4102]

Washington State Medical Marijuana grower has been indicted on allegations he manufactured marijuana and used a gun during a drug trafficking crime.

Loken a Medical Marijuana grower used his pistol to defend himself and his property with a handgun during a home invasion.In addition to the charges, prosecutors have asked to seize Loken’s home as well as eight firearms.

http://www.seattlepi.com/local/article/ ... php#page-1

[jshuberg]

The reality of this world is that the violation of rights is often in the eyes of the beholder. Forgetting that we live in pluralistic, political society in which people legitimately disagree on any number of matters is not a useful, and is a badly skewed, perspective.

...

But ranting won't necessarily help. Understanding the political and legal process just might help. But the nature of a democratic republic is probably such that no one is going to be completely satisfied all the time.

For someone who claims to be an avid firearms enthusiast, that's about the most apathetic narrative I've read on the status of our 2nd Amendment rights. I understand that you're trying to communicate the black and white current state of things, but if you're truly as invested in the right to keep and bear arms as you claim, I would expect something more than "in the eyes of the beholder". You still haven't answered the question as to whether you personally believe that our rights are currently being infringed, and what legal arguments you believe are best suited to assist in the restoration of those rights. Your profile shows you live in the Bay Area of CA, possibly the most restrictive region of the most restrictive state concerning firearms rights. Yet when discussing the violation of these rights your statement is that it's just "in the eyes of the beholder"!!??!!

If I might be so bold as to suggest something, perhaps you guys in CA should entertain a little ranting, demonstrate some passion, promote a little public outcry. From my seat, it doesn't look like the recipe being used out there is working very well. You live in the only state that has a full time dedicated firearms confiscation team! While I very much respect your personal and professional opinions, I just can't understand how someone could continue to live in CA as a firearms enthusiast, and have such apathy for the violation of your rights. If it wasn't for the insanity of your state government, I'd be living in San Diego at this very moment. The way things are out there right now, it's not even the slightest possibility for me.

If you believe my arguments on the constitutionality of prohibited persons, or anything else for that matter is flawed, please correct me. Give me a better argument, one you believe does have legal merit. Please give me something other than telling me I'm wrong, and that the violation of our rights is just a subjective opinion.

[steve4102]

If I might be so bold as to suggest something, perhaps you guys in CA should entertain a little ranting, demonstrate some passion, promote a little public outcry.

Really? This from a Minnesota Boy that lives in a State that help elect Obama not only once, but twice. What exactly have you and your State done to curtail the Socialist Anti-Gun Machine that is taking over America? Looking at our State legislative makeup, Rep. Nolan a hard core anti-gun politician ousting Rep Cravaack and Governor Goofy, I would say not much.

Might want to work on your own back yard before you throw them there stones.

[jshuberg]

Priceless.....

[Frank Ettin]

The reality of this world is that the violation of rights is often in the eyes of the beholder. Forgetting that we live in pluralistic, political society in which people legitimately disagree on any number of matters is not a useful, and is a badly skewed, perspective.

...

But ranting won't necessarily help. Understanding the political and legal process just might help. But the nature of a democratic republic is probably such that no one is going to be completely satisfied all the time.

...I would expect something more...

Why would I care what you would expect? I'm not looking for, nor would I value, your approval.

[XDM45]

The reality of this world is that the violation of rights is often in the eyes of the beholder. Forgetting that we live in pluralistic, political society in which people legitimately disagree on any number of matters is not a useful, and is a badly skewed, perspective.

...

But ranting won't necessarily help. Understanding the political and legal process just might help. But the nature of a democratic republic is probably such that no one is going to be completely satisfied all the time.

...I would expect something more...

Why would I care what you would expect? I'm not looking for, nor would I value, your approval.

IBTL.

...and that ends any value from this point forward in this thread.

/end_thread_value_here

[Frank Ettin]

...and that ends any value from this point forward in this thread....

Be that as it may, I entered this thread to provide some solid information on federal law relating to marijuana and guns.

jshuberg has provided some serious misinformation which, if paid attention to, could get someone into a lot of trouble, for example (note, times of posts are PST):

• Tue Jan 28, 2014 12:43 pm:
  

  ...the requirement that a person answer the questions on form 4473 section 11 is potentially a violation of the 5th amendment protection against self incrimination...

  
  People have in fact been successfully prosecuted and imprisoned by the federal government for providing misinformation in response to the questions in section 11 of the form 4473.
  
  
• Tue Jan 28, 2014 12:43 pm:
  

  ...If I were a pothead (which I am not) and was refused the sale of a firearm by an FFL due to my refusal to answer the questions in section 11 of form 4473, I could simply buy a firearm from a private individual, and keep my mouth shut during the transaction that I was a pothead. Going this route, no federal law has been broken regarding the transfer or ownership of the firearm....

  
  In fact possession of a gun or ammunition, no matter how obtained, by an unlawful user of a controlled substance would violate 18 USC 922(g)(3). The federal government has successfully prosecuted people for being unlawful users of a controlled substance in possession of a gun or ammunition, including when that controlled substance is marijuana.
  
  
• Tue Jan 28, 2014 12:43 pm:
  

  ...However, in your hypothetical scenario where MN decriminalizes the medical use of marihuana, a person with a prescription would no longer be an unlawful user under state law. A pothead would be able to purchase a pistol from a non-FFL without any state or federal firearms laws being broken, provided he didn't notify the seller he was a pothead....

  
  Again, this is incorrect as discussed above and in my post of Mon Feb 03, 2014 6:30 pm.

Indeed jshuberg acknowledges that (Tue Feb 04, 2014 9:03 am):

...It's likely that my amateur legal arguments would be insufficient to stand up in court, since I have no training in making legal arguments....

To be sure, the way he, and others, think things should be, is very interested; and many of us wish things were different. But our wishes do not affect current reality, nor will they keep people from getting into serious trouble for not understanding the way the law actually is.

So the fact that I might not pass jshuberg's litmus test as a champion of the Second Amendment is irrelevant to my purposes and my interests.

[jshuberg]

This has gotten a little ridiculous. Let's rewind back to the beginning for a moment. The topic of discussion was framed around "what if MN changes it's marihuanna laws". This entire thread is wrapped in a hypothetical situation. The reality is that marihuanna *is* currently illegal in MN. Being a marihuanna user and a firearms owner *is* illegal in MN. This is well known, no one should be confused by this. A person who wishes to live his life in a lawful manner would already A) not be a marihuanna user and B) not own firearms as a marihuanna user. Nothing being discussed in this thread was intended to convey the current state of the law. In fact this entire thread is nothing more than intellectual masturbation, as I don't believe any of us here are in a position to change existing state or federal law, or to argue the lawfulness or constitutionality of existing law before the courts. I believe that our firearms rights are currently being infringed by state and federal law, and why I believe it. Once again, it's a diner table conversation occurring on the internet. At the end of the day, it means absolutely nothing, but may encourage other people to think about the issues and get involved.

Normally when I discuss firearms law, I do so very carefully as the context is most often what the law actually *is*. However, that is *not* what is being discussed here. What is being discussed is the *hypothetical* consequences if state law changes. For the record, I was wrong when I stated that federal law only dealt with the transfer of a firearm to a marihuanna user, and not the possession of one. Honestly, I should have known this. Once again though, for the person who wants to be lawful citizen of the state of MN, it *is* already illegal at the state level, so a lawful person would not be engaging in that activity in the first place, federal law or not.

Should MN law change in some way that effects firearms, attorneys who specialize in firearms law in MN would review the appropriate statutes, case law, etc. that had changed, and the information would be disseminated to the community through BCA instructors, updated firearms guides, etc. Your attempt to predict how a change in MN law would effect firearms owners is interesting. It's just as valid as anyone else's opinion. At the end of the day though, it's an entirely hypothetical scenario that hasn't happened yet. The reality is that marihuanna *is* currently illegal in MN, and being a marihuanna user and a firearms owner *is* illegal in MN. No one has stated or advocated anything differently.

Here's something I find interesting though - immediately before a legislative session where the most significant challenge to our firearms rights is occurring, someone drops into our little forum from out of state claiming to be an attorney and firearms instructor. He then goes on to refer to the right to keep and bear arms as a "want". He basically made the statement that public outcry isn't useful to correct rights violations, that it should be left to the lawyers and leaders. He's shot down every argument that our current firearms rights are being infringed. And has ducked multiple questions and opportunities to make a single pro-firearms statement. In fact he said that any perceived violation of our rights is simply "in the eye of the beholder".

I have absolutely no idea if you are in fact who you claim you are, it's just as plausible that you're an anti-firearms activist engaging in Fear Uncertainty and Doubt in regards to firearms rights. If you are who you say you are I want you to pause for a moment and think about that. Legal arguments aside, everything you've stated about firearms rights and firearms activism has been to dissuade people from believing their rights are being infringed, or towards taking any action to correct it. If you're not an anti-firearms activist in disguise, your statements and intents are certainly questionable.

Once again, *if* any changes to law actually occur that involve firearms owners in MN, we will undoubtedly be provided the up to date and correct information from attorneys who specialize in firearms law in MN. Until and unless that happens we are all simply engaging in entirely hypothetical arguments. In that context the opinion of an insurance regulatory attorney from out of state is worth exactly the same as anyone elses - pretty much nothing as the situation being discussed simply hasn't happened yet.

Thank you for your interest and your time. I'm sure you'll follow up with another post similar to your previous ones, but I'm done with this one. Have a wonderful day.

[Evad]

Here's something I find interesting though - immediately before a legislative session where the most significant challenge to our firearms rights is occurring, someone drops into our little forum from out of state claiming to be an attorney and firearms instructor. He then goes on to refer to the right to keep and bear arms as a "want". He basically made the statement that public outcry isn't useful to correct rights violations, that it should be left to the lawyers and leaders. He's shot down every argument that our current firearms rights are being infringed. And has ducked multiple questions and opportunities to make a single pro-firearms statement. In fact he said that any perceived violation of our rights is simply "in the eye of the beholder".

I have absolutely no idea if you are in fact who you claim you are, it's just as plausible that you're an anti-firearms activist engaging in Fear Uncertainty and Doubt in regards to firearms rights. If you are who you say you are I want you to pause for a moment and think about that. Legal arguments aside, everything you've stated about firearms rights and firearms activism has been to dissuade people from believing their rights are being infringed, or towards taking any action to correct it. If you're not an anti-firearms activist in disguise, your statements and intents are certainly questionable.

This one could very well be an impersonator, or it could be the same guy who is a moderator on TFL, THR and also a practicing lawyer since 1976 in Cali.

[Frank Ettin]

...it could be the same guy who is a moderator on TFL, THR and also a practicing lawyer since 1976 in Cali.

That is who I am, except, to be accurate, I retired the first of the year in 2007. I have, however, maintained my active Bar membership and kept up with my required continuing education.

This has gotten a little ridiculous. Let's rewind back to the beginning for a moment. The topic of discussion was framed around "what if MN changes it's marihuanna laws"....

The actual issue raised in the OP was:

With the MN Legislators gearing up to "Legalize" Medical Marijuana, I though I would start a discussion on how this would affect Firearms and Firearm ownership....

That is exactly what I clarified with reference to current federal law. And my answers are exactly the same, under federal law, in California, Oregon, and other States which have legalized medical marijuana, as well as in Washington and Colorado which have legalized recreational marijuana use as well.

...Your attempt to predict how a change in MN law would effect firearms owners is interesting....

And is also accurate since my opinion is based on federal law. In effect, any change in Minnesota marijuana law, just as past changes in the marijuana laws of California, Oregon, Washington, Colorado and several other States, would have no effect on the applicability of federal law relating to marijuana and firearm possession to residents of Minnesota.

...Here's something I find interesting though - immediately before a legislative session where the most significant challenge to our firearms rights is occurring, someone drops into our little forum from out of state claiming to be an attorney and firearms instructor...

First, you apparently know who I am since you have twice referred to me as:

...an insurance regulatory attorney...

Second, I chimed in here because the OP, who is also a member at TFL, asked me to comment on some of the points you raised. I commented on those points both here and in a "marijuana" thread at TFL.

...He then goes on to refer to the right to keep and bear arms as a "want"....

And of course I said no such thing. But to refresh everyone's recollection, let's look at my post of Mon Feb 03, 2014 6:30 pm (PST):

...

...Also the requirement that a person answer the questions on form 4473 section 11 is potentially a violation of the 5th amendment protection against self incrimination...

Nope.

There is a good deal of case law on Fifth Amendment issues, and I know that you will find none to support your contention.

There are cases in which the Fifth Amendment privilege against being compelled in a criminal case to testify against yourself has been found to bar prosecution of a failure to file a tax return (Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968)) and failure to register an illegally possessed NFA firearm (Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968)). There are similar cases, but they all reflect a common theme:

1. A person's sole choices are, essentially, to commit a crime by failing to register or file something or admit a crime by registering or filing something.
   
   
2. And thus a person is compelled by law to testify against himself because if he doesn't do so by registering or filing something he can be prosecuted for failing to register or file.

But you commit no crime by not buying a gun. Therefore, you are not compelled to fill out a 4473 and thus, if you do so honestly admitting to another crime (e. g., being an unlawful user of a controlled substance) you have done so voluntarily. And since you are not legally compelled, on pain of criminal prosecution, to buy a gun, the Fifth Amendment, based on the reasoning of the cases I've cited, would not bar prosecution for your false statements on a 4473 in violation of 18 USC 922(a)(6) it you chose to attempt to buy a gun.

To support your Fifth Amendment argument you would need to find cases ruling that a mere desire or want is sufficient compulsion to support invoking the Fifth Amendment. Good luck with that.

Furthermore, looking at a sampling of appeals from convictions for making false statements on a 4473, the lawyers for none of those defendants raised the Fifth Amendment. It would be hard to imagine that all of those lawyers were incompetent for failing to raise the Fifth Amendment if it could have been a viable defense. I looked at these cases: U.S. v. Hawkins, 794 F.2d 589 (C.A.11 (Fla.), 1986); Brown v. U.S., 623 F.2d 54 (C.A.9 (Cal.), 1980); United States v. Beebe, 467 F.2d 222 (10th Cir., 1972); U.S. v. Ortiz, 318 F.3d 1030 (11th Cir., 2003); U.S. v. Ortiz-Loya, 777 F.2d 973 (C.A.5 (Tex.), 1985); and U.S. v. Graves, 554 F.2d 65 (C.A.3 (Pa.), 1977).
...

The point of course is that since no one is compelled to buy a gun, one's choice to buy a gun can not serve as the foundation of a claim that being required to answer questions on the 4473 could somehow violate one's Fifth Amendment privilege not to be compelled to testify against himself in a criminal case.

And as far as the rest of your personal attacks, my words are here for everyone to read. Each person is free to draw his own conclusions.