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No Guns for Medical Marijuana Users

ATF has ruled that people with medical marijuana cards are ineligible to purchase firearms, and have sent a letter to dealers outlining such. As a matter of federal law, their determination in this case is quite correct. Whether the federal law is proper or constitutional, I think is open for debate.

40 Responses to “No Guns for Medical Marijuana Users”

  1. mindy says:

    So just having a MM card is enough to be disqualified ?

  2. Sebastian says:

    Yes, because federal law prohibits anyone who is an unlawful user of, or is addicted to controlled substance from possessing firearms. Since the feds don’t recognize MM, if you have a card, you’re admitting to being in that category, and so are prohibited by federal law.

  3. Matthew Carberry says:

    mindy,

    Do people go through all the trouble to get a prescription for marijuana from a doctor without actually using the marijuana?

    While I suppose it could happen it’d be a tough sell in court, given teh difficulty of getting a prescription, having a MM card is pretty solid prima facie evidence of use.

  4. Mobo says:

    Having a MM card proves only that you have a MM card.

  5. mike w. says:

    Having a MM card doesn’t prove a person is a marijuana user any more than having a CCW permit proves a person carries a concealed firearm.

  6. Sebastian says:

    The standard is whether the dealer has reasonable cause to believe the person might be addicted to or an unlawful user of a controlled substance. If the person has a MM card, a reasonable person would have reason to believe that’s the case.

    The legal standard isn’t absolute. It’s a reasonableness standard.

    It would be kind of like someone coming up to you to buy a gun, state they can’t pass the background check, so would you mind doing it in a private sale. Sure, they might not be able to pass because of an error in the system, but I’m pretty sure if you got busted for it they’d have to problem getting a conviction.

  7. Mobo says:

    And I would argue that it’s not for the ATF to decide precisely what “reasonable” is. That’s for a jury to decide, should a prosecutor attempt to snag somebody. Who knows, perhaps a sizeable portion of MM cardholders are just getting the card to lend support to the medical marijuana movement, and have no intention of ever smoking the stuff.

  8. Mobo says:

    Merely holding a plastic card in your wallet does not necessarily amount to an “inference of present use”. Moreover, I think that the question on the 4473 form asks if you are a user of controlled substances, not if you possess a plastic card. I would have no problem with answering “no” to that question.

  9. Matthew Carberry says:

    While true, and I agree, that’s a bit sophistiric (yeah, I’ll go with that spelling).

    You can own a gun legally without carrying in every state, you only need to get a CCW, in states that have and require them, to allow you to carry the gun. So yeah, you can get a CCW without having a gun at all and it’d be quite rational. There’s zero criminality involved in the process.

    You can’t Federally possess marijuana at all and in most state’s with MM you can’t possess it legally without a script either.

    You can only get a MM card, from a doctor, by prescription, in those states to allow you to both possess and use pot legally with such a card. Possession of the card is thus, in practical effect, tantamount to an admission of both possession and use by yourself (since MM cards don’t allow you to “share” and why buy pot to sit and watch it dry up?).

    Even with the card, it’s still “unlawful use or addiction to…” under Federal law.

    That combination of factors certainly rises to the level of probable cause.

    The argument that you have a medical condition sufficient to allow you to qualify for a MM card and you jump through the hoops to get it prescribed by a doctor, but you choose not to ever possess and use pot with it is a valid one, but hardly a sufficient defense against presumption.

    Rather than go through the verbal gymnastics to press a point, better to get MM card holders to join the fight against such gun prohibitions.

  10. Mobo says:

    @Matthew:

    To this I would say that it is NOT a criminal act to withhold from both the FFL and the 4473 form that you are a MM card holder. Nowhere is it asked on the form. As far as I know, states don’t report to the feds a list of MM cardholder’s names.

    The reasonableness argument doesn’t even come into play here, as MM card issuance is not discoverable in an instant check, and the FFL desn’t know what you don’t tell him.

  11. Mobo says:

    And yes, you’re absolutely right that we need to combine our efforts with the MM people.

  12. Matthew Carberry says:

    @mobo,

    and to that I would agree, not revealing you have a card shouldn’t be a crime

    with the caveat that if you actually have a MM card and smoke pot, putting “No” on the block about using or being addicted to an unlawful substance (legality being determined by Federal law) you’d be deliberately committing a crime.

  13. Sebastian says:

    And I would argue that it’s not for the ATF to decide precisely what “reasonable” is. That’s for a jury to decide, should a prosecutor attempt to snag somebody.

    It’s ATF’s job, as the regulator to an industry, to make interpretations of the law and communicate that to the people they are regulating. Any federal regulator will do that. As someone who’s spent a career in a regulated industry, you want the regulating agencies take on federal law. You must definitely don’t want them telling you to take chances with a jury.

    To this I would say that it is NOT a criminal act to withhold from both the FFL and the 4473 form that you are a MM card holder. Nowhere is it asked on the form. As far as I know, states don’t report to the feds a list of MM cardholder’s names.

    If you hold the card, and do not use marijuana, and are not addicted to it, you can legally answer “no” on the 4473. But one would presume the category of people with a MM card, who are not currently using, is probably pretty small.

    The assertion here is that if the dealer knows you hold an MM card, then the dealer has reason to believe the person is a prohibited person, and that the sale would be considered unlawful. That’s consistent with federal law on the matter.

    It also is clear that if you answer “no” on the form, and you are found to be an active user of marijuana, you can be busted for lying on the form.

  14. Sigivald says:

    Proper? Well, not morally. Probably legally.

    Constitutional? Probably.

    Heller held that traditional bans, such as that on felon possession, were at least not obviously wrong.

    A ban on admitted-continuing-comitters-of-crime is probably roughly in the same boat – and as long as dope’s illegal at the Federal level, using and/or possessing pot is a crime, and MM card holding is a proxy for using and/or possessing pot that’s so good that I can’t see a court throwing it out, especially under the “cause to believe” standard in question.

    Stupid and a pointless waste of taxpayer money to enforce, but not unconstitutional on its face.

    And remember, “drug users can’t get a transfer” is not the ATF’s invention – it’s Congress.

  15. Sage Thrasher says:

    MM cards are like gun registration, they only ensnare the law abiding. Dope smoking gang bangers, of course, won’t be affected by this or any other prohibition inanity. However, it does sound like getting an MM card might be a good way to protest the stupidity of the “drug war” and its continued encroachments on our civil liberties–get the card then make them PROVE you’re using it to break the law. Will MM card holders next lose their 1st Amendment rights, or just their 2nd, 4th, 5th, 6th and 14th (all of which I’d argue this ATF policy violates)? What’s next, quartering their agents in our homes?

    Fight crime–End prohibition!

  16. Sage Thrasher says:

    Ending italics….hopefully.

  17. mobo says:

    “It also is clear that if you answer “no” on the form, and you are found to be an active user of marijuana, you can be busted for lying on the form.”

    OK, so I buy a gun a month ago. Today, I’m involved in a car accident and charged with a DUI because they found THC in a blood test. Perhaps I wasn’t a pot smoker a month ago, and just happened to try it for the first time today.

    I have an answer for everything :)

  18. Sebastian says:

    They’d just nail you for 922(g), which prohibits possession.

  19. Sebastian says:

    I think the constitutionality of the prohibition could be questionable.

  20. Shawn says:

    I heard about that. I know a person who was considering going for it (plate in his skull) but when he found out about that that was a deal breaker.

    But of course pot is illegal by federal law and that is something they ask on the 4473. So you put ‘yes’ and they deny it or put ‘no’ and you go to prison if they find out.

    They only way to fix this issue not just in gun rights but this drug issue as a whole is legalization. But its not going to happen. Because it’s just to good an excuse to take your rights away.

  21. Sage Thrasher says:

    “They only way to fix this issue not just in gun rights but this drug issue as a whole is legalization. But its not going to happen. Because it’s just to good an excuse to take your rights away.”

    Well put.

  22. John A says:

    The last I heard, about two years ago, there was still one guy left in the Federal “study” of marijuana getting a can of 200 smokes rolled-by-the-government each month. I wonder how he would be told to answer?
    ————–
    Not really relevant, just find it amusing that something named bacon is on the list of controlled substances –

    http://en.wikipedia.org/wiki/Thebacon

    and in Schedule I at that.

  23. Sebastian says:

    That’s a damned interesting question, John A. I think the answer might be “no” for him, because he’s a lawful user under federal law.

  24. Neal M says:

    First of all you all appear to be fairly intelligent people, but I think some of don’t understand this situation clearly. There are hundreds of prescription drugs that are by definition “controlled substances”. Now I may have a prescription for one of them but I don’t automatically lose any of my constitutional rights just because I have that prescription.
    We have a thing called the constitution and the 14th amendment guaranties everyone due process, labeling someone an addict without some sort of proof they are in fact an addict is just plain wrong. The same argument can be made about someone being an alcoholic because they bought a bottle of wine even if they didn’t drink it. After all who goes through the trouble to buy an expensive bottle if they aren’t going to drink it? You can get a MM card for well under $100 in most states where it is legal under state law.

    Here’s the problem, the feds are violating one constitutional right (the 14th) to suspend another right (the 2nd) and to add insult to injury, they are violating the sovereignty of those states and the people who voted to make MM a legal alternative to main street medication.

    Is MM legitimate? I don’t know it seems to work for some without all the nasty life threatening side effects of most pharmaceutical medications. I don’t want my penis to fall off because I have a headache, nor do I want to have a stroke or sudden heart attack because my nose is stuffy.

    It is what it is, if it works to help someone cope with chronic pain or helps someone eat and hold down food as they are dying, or eases the suffering of the panic attacks associated with knowing they are about to die, let ’em be.

    They just keep chipping away at our rights little by little and before you know it you’ll see cameras at intersections taking pictures of drivers running stop signs, OH WAIT! they do that already. How about tracking chips in our cell phones, OH they’re doing that too?

    Peace to all…

  25. A Critic says:

    “The last I heard, about two years ago, there was still one guy left in the Federal “study” of marijuana getting a can of 200 smokes rolled-by-the-government each month. I wonder how he would be told to answer?”

    I believe there are four remaining patients. One got hassled in Oregon, was robbed and falsely arrested by the cops.

    “I think the answer might be “no” for him, because he’s a lawful user under federal law.”

    If you ignore the fact that the federal law isn’t a federal law due to violations of the Constitution and common law, they are still unlawful users. They are also lawful users. They are both prohibited and permitted to use marijuana. The fact that they are permitted I don’t believe overrules the fact that they are prohibited, or vice versa. They can use it because it has medical benefits, but since per federal dictate marijuana has no medical benefits they can’t use it. Since the “law” here is determined solely by what criminals in positions of power say it is, it should be “clear” that that they are prohibited from exercising their second amendment rights. After all – if they can’t use the medicine that even the feds have recognized is keeping them alive because it doesn’t keep them alive, then why can any other right apply?

    And no, that isn’t clear, logical, or make any sort of sense, but that’s the way the federal “law” is.

  26. A Critic says:

    Ah, per the above link I was wrong…the woman wasn’t robbed or arrested, which I believe is different from the previous account I read.

  27. Neal M says:

    OK everyone lets keep this in perspective, I fully understand the feds position (no I don’t) and it makes sense (no it doesn’t) because none of us want armed drug addicts running around our streets.

    Here is the cold HARD fact, my 2nd amendment rights are being violated simply because I have a plastic MM card, no other reason I just have a card.

    That’s like saying if I have a car that is capable of exceeding the speed limit, I’m automatically guilty of reckless driving and I shouldn’t have a drivers license.

    Reckless driving is a crime, but shouldn’t I at least be in my car before you arrest me?

    There is absolutely NO violation of ANY law, federal or state for simply having a MM card, where is my GD due process?

    Am I the only person that sees this as something scary?

    Here’s a novel idea, how about prosecuting me if and when I commit a crime? I could understand that, make possessing a MM card a crime, I could understand that as well.

    Someone told me once, in America we are innocent until proven guilty, and we never need worry about the Salem witch hunts ever again…

    The day is coming people when we will be subject to arrest or other prosecution simply because someone thinks we might commit a crime – DAMN, those days are here? S$%#, even though I’m going skiing this weekend I need to get the ski mask out of my car, someone might think I’m going to rob a 7-11 and I’ll end up in prison.

    So why not wait until I actually commit a crime before you introduce me to my new best girlfriend Bubba in cell block C.

    How about you find me in possession of marijuana at least once before you charge me, it only seems fair and logical.

    How far would law enforcement get if they went to every bar or restaurant and arrested everyone for drunk driving because they have a suspension they MIGHT drive. After all they are drinking alcohol and we all know driving under the influence is a crime everywhere.

    Mere suspicion has never been probable cause in any court in America for any reason, cops can’t even get a search warrant without probable cause, courts have ruled time and time again simple suspicion IS NOT probable cause, because we have a constitution.

    Here’s how silly (or scary it is),

    Police Officer; “Yes you honer I arrested Mr. Smith” (the name was changed to protect Robert L. Smith’s identity , 2343 18th Avenue, Summerset Texas – DOB 7/14/1978, wife Barbara). Sorry, “I arrested Mr Smith because I suspected he might commit a crime. He was walking down the street looking suspicious with his hands in his pockets, God only knows what he was planing to do with his hands.”

    NOW I know what you’re going to say – But Mr. Wizzard, hands aren’t illegal, OH my little grasshoppers, neither is a MM card. In all 50 states, count them, (I know you won’t) hands and MM cards, let me say it again, HANDS AND MM CARDS are legal. What you chose to do with them is up to you, and it’s not for someone else to speculate what any person might do and “deprive any person of life, liberty, or PROPERTY, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

    Wake up guys and gals…
    Before long, courts will be taking children away from their parents because they are over weight, WHAT? they’re doing that already? Damn I’m behind the times, what about tracking my credit and debit cards to see how money I spend and matching it up with my income, they’re doing that too?? Now I’m starting to get it, they can do anything we let them do because we don’t pay attention until it effects us personally, I get it, I get it.

    Peace again…

  28. There are ways of challenging this ban, and because an MMJ card doesn’t mean automatically that you’re using at all, or involved in anything unlawful other than having the card itself (the card itself is not unlawful), it would take someone willing to deal with 3 years of not being able to buy guns to challenge it upwards.

  29. Neal M says:

    Yes Gray, you understand, but everyone needs to understand it’s already been challenged in 1775 we challenged Great Britain and won. One of the things we got from that war was our constitution and one of the main elements was to break away from English common law. Unlike Great Britain, in America we are innocent until proven guilty, not the other way around.
    Like I pointed out before, if you have a MM card you are not in violation of any federal, state or local law.

    With the feds not only are you guilty of a non-criminal offense, you are judged, convected and prosecuted without seeing a judge or given the opportunity to defend yourself.

    That’s just F’ed up, how much power do these asshats really have and why do we need judges and courts if they can just make s^%& as they go.

    Peace to you all

  30. Mobo says:

    Here we have a letter advising FFL’s not to sell to any person who has disclosed that they are in possession of a pkastic card, as it may expose them to prosecution, because any reasonable person would have reason to believe the buyer is a user of controlled substances.

    But let’s say a buyer did not disclose the existence of a MM card, and the NICS check comes up clean. Let’s also assume that this buyer has never smoked marijuana, and only has the MM card as a form of protest (or whatever….).

    At some later date, the buyer is in an automobile accident while carrying both a firearm and an MM card. He has a LTCF issued by his home state, and the incident happens in that state as well. He is thoroughly screened for drug use and all tests show that he is clean, however the police discover his MM card.

    Could he be charged as a drug user in possession of a firearm at this point?

  31. Neal M says:

    Mobo, to answer your question the answer is a simply yes and no – lol.

    Yes, the person can be charged with possession of the marijuana and possession of the firearm (together) under federal law.

    NO, you cannot be charged for having a MM card because it simply is not a violation of any law. If you are involved in an incident or accident and it is discovered you have MM card and a firearm but NO marijuana you cannot be charged with the possession of the MM card, so no violation of federal law was committed.

    The legal burden of proof and argument should be;

    #1 are you in possession of, or under the influence of marijuana or any other controlled substance, including prescribed pharmaceuticals or alcohol for that matter.

    #2 do you have firearm(s) in your possession at the time of the incident.

    #3 is there any history that you are an addict or addicted to marijuana or any other drugs (including alcohol) legal or not.

    All the MM card proves is that you have a MM card, the very least the feds should have to prove is you have marijuana or are under the influence of marijuana and a firearm.

    I’ve also read the BS questions “why would anyone go through the expense and trouble to get a MM card if they don’t use it?” Well, I have a fishing license that cost me $41.50 (you can get a MM card in my area are about $50.00) and I haven’t been fishing all year. To follow that logic, I guess I should go to the local F&G office and pay my $1000 fine because I might catch an undersized fish if and when I decide to go fishing.

    In California if you have a CCW (concealed carry permit) and you are involved in any incident while under the influence of alcohol in most cases your permit is automatically revoked. Your permit is never revoked because someone sees you in a bar or liqueur store or someone THINKS you might drink a beer.
    If you use or discharge your firearm, you will be tested, Even Police Officers involved in a shooting are tested, THAT MY FRIENDS IS DUE PROCESS!!!

    All I’m asking for is, please respect my (and your) rights, This is a joke and simple retaliation by the feds because some states had the nerve to invoked there sovereignty and passed a compassionate care law.

    Some day they will get our guns one way or another, and when they do, God help the misguided people that think that will solve the violence problem we face today.

    Proof, murder capitol of the USA, handguns are illegal, the runners up for that title, handguns are illegal. It’s simple math people, 1 + 2 = 5.

    Remember, gun control means – using both hands

    Peace everybody, and don’t forget to love one another frequently…

  32. Matthew Carberry says:

    Neal,

    That seems like a strained apples and oranges comparison.

    Anyone who wants a fishing license can get one simply by walking into a tackleshop and paying for it.

    My understanding is that MM cards require a doctor’s prescription and thus proof of an actual qualifying medical condition and only then the payment of the fee.

    So the number of possible protest folks is limited to the class of people who actually have one of the qualifying medical conditions. It is further limited to those who want to go through whatever the process is to find and pay a doctor to make the diagnosis and write the script for the card prescription (probably while concealing their intent since medical ethics doesn’t really allow for “protest” prescribing by doctors). It is further limited to those who then want to apply and pay the required gov’t fee for the card itself.

    Finally, among the increasingly limited number of people who are willing and able to go through that process, for it to be solely a “protest” action they then have to decide to not actually use the thing and continue with other treatment methods (or no methods) for the condition that qualified them to get the card in the first place.

    Now maybe some states don’t put real limits on what qualifies as a medical condition and maybe some doctors are willing to wink at their oath and write medically unnecessary scripts as an act of protest themselves (Wisconsin sick day doc types) but even then I find it hard to believe it’s the same simple process as buying a fishing license.

    I’m not saying it can’t be done, and, again, I’m not “for” the ATF ruling, but it starts straining credulity to claim that there are, or even could be, enough people with purely protest MM cards to consider it a real factor in having a problem with the decision.

  33. Neal M says:

    People, please allow me one more point.

    This is a fact, unlike the feds, this is not something I made up and I think it is a very important point for all of you that think this MM card thing makes sense, or even marijuana.use in general for that matter,

    I can legally regularly use at least once a day or more and even be addicted to;

    Oxycodone, Xanax, Nembutal, Seconal, Ritalin, Cylert and Adderall even though some of the many, many negative side effects include;

    Irregular heartbeat; hallucinations; mental or mood changes; depression; shortness of breath; slurred speech; suicidal or homicidal thoughts; unusual thoughts or behavior; irritability, anxiety and yes, even suicidal actions, not thoughts, but actions.

    Yet, I can still own firearms??????

    I’m a nice guy, but I think I’m losing my love for the feds, still love the rest of you…..

    Peace, love and freedom, it doesn’t get any better then this…

  34. Neal M says:

    My dear (new) friend Matt,

    You are right, but I’m not talking about the “card mills”, I’m talking about the people who may go through the embarrassingly simply process of taking your medical records to a Doctor for a recommendation.
    if you have your records in hand it’s a very fast process, under 30 minutes in most cases.

    I’m not trying to defend people that abuse the system, that’s why I’m not on the feds side on this issue. The feds are simply abusing their power to make a point and kill 2 birds with 1 stone, make life harder for MM users and gun control.

    The merits of MM can be argued ’till the cows come home, I firmly believe from my personal observations, some people do in fact get some relief of from condition(s) by using MM. Others don’t agree, that’s fine and I don’t have a problem with that.

    I’m not defending MM, nor am I condemning it, all I’m saying is the feds are wrong. I am innocent until proven guilty and that determination is, and has always been for the courts to decide.

    As I said in an earlier post, if law enforcement federal or local can determine my guilt based on a suspension only and punish me for a non-criminal act, why do we need courts, prosecutors, jurors and attorneys?

    Do I fear Judge Dread, YOU BET YOUR ASS I DO!

    Take care…

  35. Mobo says:

    Neil, you sort of missed the point of my question.

    The ATF letter was a guideline for FFL’s to follow, not a guideline for police to follow during a traffic stop, for example. It didn’t necessarily go as far as to say that all MM card holders are automatically prohibited persons. It only says that FFL’s should not make any sales to them, or the FFL could face prosecution.

    The question is how far can this go? In my example above, the MM card and accident would have given police probable cause to drug test. Assuming a clean test result, and only a plastic MM card in hand, could the poice then use this to confiscate his frearms and arrest him for being a drug user in possession of firearms?

  36. Neal M says:

    Hey Mobo,

    Sorry, I keep going off on a rant because I hate things that aren’t right.

    According to Arthur Herbert, ATF assistant director, marijuana users, card or not can not buy or possess firearms. That means if you use marijuana even if it’s legal under your states law, you are in violation of federal law, and subject to prosecution including having your property seized without any due process.

    The scary thing about that is it is a presumption of guilt with no legal recourse because you have already been judged, convicted and punished without any proof you have ever used any drug.

    The point I have been trying to make is, if a person has a MM card and is automatically labeled a drug addict based on that fact alone, is someone that has a prescription to Percocet or any other controlled substance also an addict and if they are, will they suffer the same fate?

    It makes no difference what you and I think about MM, that’s not the point. I think there is reasonable doubt that should be weighed at least as much as probable cause.

    Is it reasonable to believe that every single person that has a MM card is in fact an addict or even uses marijuana.

    All I’m asking for is due process, that’s a guarantied right we all have and we have it so things like this can’t happen. The ATF does not have the authority to take rights away from us because we might do something…

    Well, I’m on my way to the kitchen to get a beer, oh um I mean some milk, don’t want to be labeled an alcoholic, I might lose my drivers license.

    Mobo, I wish I were a little more entulagunt and had me a better than a aith grade edumacation so I could splain myself bettar,

    I just worry so much about stuff like this, they chip away and chip away and once things like this are established and accepted we will never be the same.

    take care

  37. As an MS sufferer, I’ll add my 2 cents’ worth.

    If the state of GA ever authorizes the medical use of marijuana, you can bet that I will go through whatever hoops I need to to get a MM card (or whatever mechanism the state prescribes). My neurologist is an eminently reasonable man, and he will respect my decision to use … or not use … marijuana. Of course, he may drop me as a patient, but that’s the choice I’ll make.

    Neal’s points are all valid (though the fishing license is a bit strained) … the mere possession of a MM card being disqualifying is (in my laymans’ mind) a case of prior restraint. And since the jurisprudence in this country right now will give primacy to the feds, there’s really nothing we can do about it except ‘transfer’ our firearms to significant others and hope for the best.

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