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

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

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


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

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

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

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

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

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

What about a Second Amendment challenge? As Brian Doherty

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

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

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