Tag Archives: Second Amendment

Federal law clearly prohibits anyone who consumes cannabis—for any reason, and regardless of state legality—from purchasing a firearm

Surrender Your Guns, Police Tell Hawaiian Medical Marijuana Patients

Bruce Barcott   November 27, 2017

The Honolulu Police Department has sent letters to local medical marijuana patients ordering them to “voluntarily surrender” their firearms because of their MMJ status.

This may be the first time a law enforcement agency has sought out state-registered medical marijuana patients and ordered them to surrender their guns.

The letters, signed by Honolulu Police Chief Susan Ballard, inform patients that they have 30 days upon receipt of the letter to transfer ownership or turn in their firearms and ammunition to the Honolulu Police.

The existence of the notices, first reported early today by Russ Belville at The Marijuana Agenda podcast, was confirmed to Leafly News this afternoon by the Honolulu Police Department.

The startling order comes just three months after the state’s first medical marijuana dispensary opened in Hawaii’s capital city.

The clash between state marijuana laws and federal firearms law—which prohibits all cannabis patients and consumers from purchasing firearms—is a growing point of legal contention in the 29 states with medical marijuana laws. The Honolulu letters, however, may represent the first time a law enforcement agency has proactively sought out state-registered medical marijuana patients and ordered them to surrender their guns.

RELATED STORY

First Medical Cannabis Dispensary Opening in Hawaii

Federal law clearly prohibits anyone who consumes cannabis—for any reason, and regardless of state legality—from purchasing a firearm. On the US Bureau of Alcohol, Tobacco, and Firearms (ATF) Form 1140-0020, which must be completed by firearm purchasers, applicants are asked if they are “an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance.”

In case it’s unclear to the applicant, the ATF includes this warning in bold type:

Warning: The use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medicinal or recreational purposes in the state where you reside.

RELATED STORY

Can Medical Marijuana Patients Legally Own Guns?

Federal Court Upheld the Ban

Many state laws allow patients to medicate with cannabis, but the federal prohibition on cannabis consumption crosses that legality when it comes to firearms. The supremacy of federal law on this point was upheld last year by the 9th US Circuit Court of Appeals.

“It may be argued that medical marijuana users are less likely to commit violent crimes, as they often suffer from debilitating illnesses, for which marijuana may be an effective palliative,” the federal ruling stated. “But those hypotheses are not sufficient to overcome Congress’s reasonable conclusion that the use of such drugs raises the risk of irrational or unpredictable behavior with which gun use should not be associated.”

RELATED STORY

Guns or Cannabis: Which Is More Strictly Regulated?

State Law Applies

The Honolulu Police Department cites state law, not federal law, as the basis for the order. “Under the provisions of the Hawaii Revised Statutes, Section 134-7(a), you are disqualified from firearms ownership,” says the letter.

Curiously, HRS 134-7(a) makes no specific mention of a person’s medical marijuana status. It’s a blanket statement about federal law:

134-7(a) No person who is a fugitive from justice or is a person prohibited from possessing firearms or ammunition under federal law shall own, possess, or control any firearm or ammunition therefor.

Until now, the clash between firearm ownership and patient status has been largely avoided through a de facto “don’t ask, don’t tell” policy. Firearms purchasers are forced to either lie on the ATF form (a federal offense), or tell themselves they’re technically honest—the ATF form asks, “Are you an unlawful user of, or addicted to, marijuana,” and those who quit cannabis yesterday technically were but no longer are unlawful users of marijuana.

RELATED STORY

Do Medical Marijuana Patients Give Up Their Right to Bear Arms?

A number of states issue medical cannabis patient cards or authorizations but do not keep a searchable database of patient names. In some medical cannabis states, like Arizona, firearm purchasers are not required to register with the state.

Hawaii, though, maintains an electronic database of both firearm purchasers, who must complete both the federal ATF and a state permit application, and medical marijuana patients. That allowed the Honolulu police to cross-check and compile a list of MMJ patients in the state’s firearms registry.

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Nevada bill would allow medical marijuana users to carry guns

Jenny Kane , jkane@rgj.com Published 4:09 p.m. PT March 20, 2017

Nevada lawmakers are trying to address everything from marijuana users’ gun rights to the danger that edible marijuana products pose to children.

On Monday, a wide array of marijuana-focused bills were introduced to both members of the Nevada Senate and the Assembly to help regulate the drug that’s now legal for recreational use in Nevada (and has been legal for medicinal use since 2000).

Sen. Kelvin Atkinson, D-Las Vegas, introduced a bill, SB 351, which would allow medical marijuana users to possess a firearm and a conceal and carry permit. Sheriffs currently are required to deny an application for a permit to carry a concealed firearm or revoke an existing permit if someone is a medical marijuana card holder.

Sen. Tick Segerblom, D-Las Vegas, co-sponsored a separate bill, SB 344, with Sen. Patricia Farley, Nonpartisan-Las Vegas, that revises the standards for the labeling and packaging of marijuana for medical use.

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Nevada bill would allow marijuana use in public

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The proposed legislation establishes limits on how much medicinal marijuana may be sold in a single package and prohibits candy-like marijuana products that appeal to children. The bill also would prevent edible marijuana products that look like cookies or brownies to be sealed in see-through packaging, or any kind of packaging that children might be attracted to.

Segerblom introduced a separate, 147-page bill, SB 329, that would allow for medical marijuana research and hemp research. The same bill would add post traumatic stress disorder to the list of conditions that could qualify a patient for medicinal marijuana consumption.

Under Segerblom’s bill, non-profit medical marijuana dispensaries could accept donations of marijuana, and all medical marijuana establishments would have to install video security which law enforcement could remotely access in real time.

He also is proposing a bill, SB 321, that would allow American Indian tribes in Nevada to make agreements with the Governor that would allow the tribes to follow state law as related to both medical and recreational marijuana.

Segerblom and Farley also introduced a bill, SB 236, that would allow money raised from medical marijuana establishment applications to be spent not only on government costs and schools. Segerblom and Farley believe that the money should also be spent on programs used to educate people about the safe usage of marijuana.

Segerblom and Farley’s bill also suggests prohibiting counties and incorporated cities from imposing requirements upon marijuana establishments that are not zoning related. The bill also would limit the license tax that a county or city could impose upon a marijuana establishment.

Assemblywoman Brittney Miller also introduced a bill to the Assembly on Monday that would vacate the sentences of offenders who were convicted of possessing 1 ounce or less of marijuana before legalization was effective Jan. 1. Assemblyman William McCurdy II introduced a similar bill last week to the Assembly’s Committee on Corrections, Parole and Probation.

The legalized marijuana industry is growing more than

The legalized marijuana industry is growing more than pot. Analysts say it could create over a quarter of a million jobs while other industries decline. (Photo: USA TODAY video still)

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Gun rights and marijuana laws

As more states expand their marijuana use laws, a new issue is beginning to pop up that impacts gun owners.

On a federal firearms background check form, Section 11 E, which was revised on January 16, asks if a person is an unlawful user of marijuana, or any other depressant, stimulant, narcotic drug, or other controlled substance.

Underneath that, in bold letters, it clarifies that the use of marijuana remains unlawful under federal law, regardless if the state you live in allows it.

Heather Fazio with the Marijuana Policy Project says that provision is a problem.

“It’s unreasonable to deprive legal marijuana users in states that have allowed access for medicinal purposes,” Fazio explained. “It’s unreasonable to restrict them to access to their second amendment right.”

But despite legal challenges, the provision has remained.

As recently as last August, the US 9th Circuit Court of Appeals upheld the ban, preventing any user of marijuana from purchasing a firearm from a licensed dealer.

Fazio points to marijuana’s classification as a Schedule I drug as a key issue in changing the debate.

“We have alcohol and opiates for example that are legal and are far more dangerous in impairing than cannabis is,” Fazio said.

A recent response by President Trump’s press secretary Sean Spicer has drawn the ire of marijuana advocates.

“When you see something like the opioid addiction crisis blossoming in so many states around this country, the last thing we should be doing is encouraging people to- there is still a federal law that we need to abide by when it comes to recreational marijuana,” Spicer said.

This is where these issues — gun rights and marijuana vs. opioid use — intersect.

Back to Section 11 E, the form uses the terminology: “unlawful user.”

In essence, a person can legally be prescribed – and use – opioids and still purchase a gun from a licensed dealer.

But if a person is prescribed medical marijuana in a state that legally allows for it — they cannot.

Fazio does not believe any state’s medical laws are in jeopardy, adding Trump’s desire to strengthen states’ rights.

There is a rider in the 2014 appropriations bill that stated the Department of Justice would not be funded to go after users of legally prescribed medical marijuana.

While Spicer acknowledged the President’s understanding of medical marijuana benefits, he added there will be greater federal enforcement of recreational marijuana laws. 

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Legal Marijuana Poses a Problem for Gun Buyers

Firearm purchases by drug users are prohibited by federal law; Alaska Republican is taken aback

By

Gary Fields and

Kristina Peterson

Updated Nov. 14, 2016 6:04 p.m. ET

37 COMMENTS

Sen. Lisa Murkowski’s husband and sons ordered her a new Benelli 12-gauge shotgun as a gift, but when the Alaska Republican—and enthusiastic duck hunter—went to pick it up, she was puzzled by a question on the federal background form she had to fill out.

The form asked if she used marijuana for medicinal or recreational purposes, both of which are legal in Alaska. If she answered yes, she would be unable to get the gun, because federal law prohibits anyone who uses illegal drugs from buying a firearm.

The senator doesn’t use pot, but she was taken aback by the notion that an activity that is legal in her state could block gun ownership. “I don’t like marijuana—I voted against legalization—but we passed it,” Ms. Murkowski said in an interview. “Now, you’ve got this conflict.”

The legal, recreational use of marijuana passed in four states on Tuesday with another three states passing it for medicinal use. Lance Rogers, manager of the cannabis law practice for law firm Greenspoon Marder, explains how that could influence efforts to legalize pot in other states.

The scope of that conflict just grew, as voters in eight states last week approved marijuana-related ballot initiatives. Now, 28 states and Washington D.C., allow marijuana use in some form, including eight that allow recreational use. Yet federal law still holds that anyone who uses marijuana, even medicinally, is doing so illegally and can’t buy a gun.

That is upsetting advocates for both gun owners and pot smokers, groups that don’t always find themselves on the same side of the cultural divide.

“This idea that you somehow waive your Second Amendment rights if you smoke marijuana” is wrong, said Keith Stroup, founder of NORML, which advocates marijuana legalization. “In particular, if you are using marijuana as a medicine, the idea that you have to choose between your health and the Second Amendment is offensive.”

“The Gun Control Act prohibitions are governed by the Controlled Substances Act, and marijuana remains an illegal, controlled substance under federal law,” said Justice Department spokesman Peter Carr.

Justice oversees the Bureau of Alcohol, Tobacco, Firearms and Explosives, which regulates licensed gun dealers; as well as the Federal Bureau of Investigation, which runs background checks; and the Drug Enforcement Administration, which classifies drugs.

The marijuana-gun issue is one of the stranger outcomes of an unusual conflict between state laws, which increasingly allow marijuana use, and federal law, which continues to view pot-smoking as a crime.

At issue are the applications that would-be gun buyers must fill out when they visit licensed firearms dealers. Question 11(e) on ATF Form 4473 asks whether the purchaser is an unlawful user of, or addicted to, marijuana.

Under ATF guidance distributed to gun dealers, anyone who answers affirmatively can’t buy a firearm. If a dealer has reason to believe the would-be gun purchaser is a marijuana user, the ATF says it is the dealer’s responsibility to halt the sale of a firearm or ammunition.

“There are no exceptions in federal law for marijuana purportedly used for medicinal purposes, even if such use is sanctioned by State law,” the guidance says.

The issue can be tricky, especially for those who oppose drug use but support gun rights. Perhaps for that reason, gun-rights groups have been relatively quiet on the issue. The National Rifle Association, for example, didn’t respond to requests for comment.

Officials at Gun Owners of America highlight the medicinal-marijuana issue. “GOA finds it very troubling that the Obama administration would use medical issues to ban law-abiding Americans from owning firearms,” said the group’s executive director, Erich Pratt.

The U.S. Court of Appeals for the Ninth Circuit ruled recently that banning gun sales to medical marijuana users doesn’t violate their Second Amendment rights. Marijuana is a Schedule 1 controlled substance under federal law, the court noted, meaning it has “no currently accepted medical use in treatment.” The DEA reaffirmed that status just last August.

Ms. Murkowski wrote Attorney General Loretta Lynch in March urging her to reconsider the policy. “In my judgment, the disqualification of an entire class of marijuana users acting consistent with state law from possessing any firearm merits a review of federal legal policy,” she wrote.

Mr. Carr said the Justice Department responded to the senator’s letter in October. “It is not the department’s general practice to release publicly private communications with members of Congress.”

Ms. Murkowski said she understands the concerns about gun owners using marijuana, but said similar dangers could arise regarding alcohol. The conflict will likely intensify, she added, as more states approve marijuana use.

Marijuana advocates say legal users of the drug are discriminated against in other ways as well, from child custody and banking to student loans and public housing.

“Even if you’re a progressive who doesn’t like guns or a libertarian who doesn’t like public housing, you should still be outraged by the discrimination that people who use marijuana face,” said Tom Angell, founder of Marijuana Majority, which supports legalization.

Write to Gary Fields at gary.fields@wsj.com and Kristina Peterson at kristina.peterson@wsj.com

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Ninth Circuit Rules Marijuana Card Holders May Not Own Firearms

Monday, 05 September 2016

Written by  Bob Adelmann

Ninth Circuit Rules Marijuana Card Holders May Not Own Firearms

 

Last Wednesday a three-judge panel of the Ninth Circuit Court of Appeals upheld a lower court’s decision that holding a marijuana card precludes its owner from keeping and bearing arms. In the process, the panel threw out the First, Second, and Fifth Amendment rights.

Rowan Wilson, a Nevada resident who held a state-issued marijuana card but didn’t use the weed, tried to purchase a firearm from Custom Firearms and Gunsmithing in Moundhouse, Nevada. She applied for the card to show her support for the freedom of people to make their own decisions about what they might or might not imbibe or inhale. It was a political statement only. It became personal when she tried in October 2011 to purchase a firearm for personal protection.

She was confronted with Question 11e on the required federal disclosure Form 4473 issued by the ATF, which reads: “Are you an unlawful user of, or addicted to, marijuana or any depressant, narcotic drug, or any other controlled substance? Yes or No.” She showed the question to the gun shop owner, who knew that she had a card, and he denied her request to purchase the firearm. It was based not only on federal laws that still make marijuana users criminals, but on an “open letter” the ATF sent to all firearm dealers holding that mere possession of the marijuana registry card was enough to allow them to prevent a potential buyer from completing the sale. That letter stated, in part:

[Anyone] who uses or is addicted to marijuana, regardless of whether his or her state has passed legislation authorizing marijuana use for medicinal purposes — is prohibited by federal law from possessing firearms or ammunition.

Such persons should answer “yes” to question 11.e. on ATF Form 4473 … and you may not transfer firearms or ammunition to them.

Further, if you are aware that the potential transferee is in possession of a card authorizing the possession and use of marijuana under State law, then you have “reasonable cause to believe” that the person is an unlawful user of a controlled substance.

As such, you may not transfer firearms or ammunition to the person, even if the person answered “no” to question 11.e. on ATF Form 4473.

Wilson sued and her complaint was dismissed. The three-judge panel heard her appeal in July and issued its decision affirming the lower court’s ruling on August 31. The opinion, penned by Senior District Judge Jed Rakoff, included this bit of reasoning:

It may be argued that medical marijuana users are less likely to commit violent crimes, as they often suffer from debilitating illnesses, for which marijuana may be an effective palliative. But those hypotheses are not sufficient to overcome Congress’s reasonable conclusion that the use of such drugs raises the risk of irrational or unpredictable behavior with which gun use should not be associated.

The panel threw out all of Wilson’s complaints that the federal law and “open letter” violated three of the 10 rights contained in the Bill of Rights. First was her right to free expression under the First Amendment:

The panel held that any burden the Government’s anti-marijuana and anti-gun-violence efforts placed on [Wilson’s] expressive conduct was incidental…

Next to go was the Second Amendment:

Applying intermediate scrutiny, the panel … held that the fit between the challenged provisions and the Government’s substantial interest [in] violence prevention was reasonable, and therefore the [lower] court did not err by dismissing [her] Second Amendment claim.

Finally, the Fifth Amendment was overridden:

The panel held that the challenged laws and Open Letter neither violated [Wilson’s] procedural due process rights protected by the Due Process Clause of the Fifth Amendment nor violated the Equal Protection Clause as incorporated into the Fifth Amendment.

[Wilson] did not have a constitutionally protected liberty interest in [both] holding a registry card and purchasing a firearm….

Reactions to the ruling were predictably swift. Tom Angell, chairman of Marijuana Majority, was outraged:

There’s absolutely no evidence to support the notion that marijuana use leads people to be more violent, as inferred in the Court’s opinion. Regardless of how you feel about guns, no one should be discriminated against … by the government just because they happen to enjoy marijuana. That should be especially true for people who consume cannabis for medical purposes in accordance with state law and their doctors’ recommendations.

Wilson’s attorney, Chaz Rainey, was equally upset with the panel’s ruling, declaring,

We live in a world where having a medical marijuana card is enough to say you don’t get a gun, but if you’re on the no-fly list your constitutional right is still protected.

Then Rainey touched on the core issue: states’ rights, adding:

Responsible adults who use cannabis in a manner that is compliant with the laws of their states ought to receive the same legal rights and protections as other citizens.

For the moment at least, the ruling applies to only the nine states covered by the Ninth Circuit: Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. Rainey has promised to appeal the ruling either to the full circuit court or to the Supreme Court. If the appeal goes that far, Wilson’s lawsuit might give the newest member (replacing deceased Justice Scalia) of the high court a chance to rule on the matter next year. 

A graduate of an Ivy League school and a former investment advisor, Bob is a regular contributor to The New American magazine and blogs frequently at LightFromTheRight.com, primarily on economics and politics. He can be reached at badelmann@thenewamerican.com.

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THE PDF DOCUMENT:

FOR PUBLICATION

UNITED STATES COURT OF APPEALSFOR THENINTH CIRCUIT

Appeals court upholds ban on gun sales to medical marijuana card holders

Published August 31, 2016

Associated Press

 

A federal government ban on the sale of guns to medical marijuana card holders does not violate the 2nd Amendment, a federal appeals court said Wednesday.

The ruling by the 9th U.S. Circuit Court of Appeals applies to the nine Western states that fall under the court’s jurisdiction, including California, Washington and Oregon.

It came in a lawsuit filed by S. Rowan Wilson, a Nevada woman who tried to buy a firearm in 2011 after obtaining a medical marijuana card.

The gun store refused, citing the federal rule on the sale of firearms to illegal drug users.

Marijuana remains illegal under federal law, and the Bureau of Alcohol, Tobacco, Firearms and Explosives has told gun sellers they can assume a person with a medical marijuana card uses the drug.

The 9th Circuit in its 3-0 decision agreed that it’s reasonable for federal regulators to assume a medical marijuana card holder is more likely to use the drug.

In addition, a ban on the sale of guns to marijuana and other drug users is reasonable because the use of such drugs “raises the risk of irrational or unpredictable behavior with which gun use should not be associated,” Senior District Judge Jed Rakoff said.

The 9th Circuit also rejected other constitutional challenges to the ban that were raised by Wilson.

An email to Wilson’s attorney was not immediately returned.

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