A retired Army veteran in Texas was recently barred from purchasing a gun after a background check turned up a misdemeanor marijuana conviction from 1971.
Ron Kelly, who served on the frontlines for 20 years (and fired “perhaps 100,000 rounds of government ammo” in that time), was arrested for possession of a small amount of marijuana while he was a high school student. He served a night in jail and a year of probation. As a result, he has been added to a list of Americans who are permanently prohibited from purchasing a gun.
Kelly’s case is not unique: There have been several court rulings on the legality of denying marijuana users their Constitutional rights. In 2011, the Oregon Supreme Court ruled that medical marijuana patients cannot be stripped of their rights to own guns. Texas law, however, states that citizens can be prevented from owning guns if they are convicted of certain crimes. And federal law prevents anyone who uses illegal drugs to own or possess a firearm.
Kelly has contacted U.S. Rep. Michael McCaul and Sen. John Cornyn for their assistance in resolving the issue.
In late September, I wrote about the letter sent by the ATF to all federally licensed firearms dealers, explaining that it was illegal to sell guns or ammunition to state-licensed medical marijuana users.
The reasoning behind this was a clause in the Federal Firearms Act that states that a person cannot purchase or possess a gun if they are “an unlawful user of, or addicted to, marijuana, or any depressant, stimulant, or narcotic drug, or any other controlled substance.” The ATF reminded gun dealers that marijuana is still illegal according to the federal government, and that having a medical marijuana license was proof that a person fit the definition of an unlawful user or addict. Of course, a state-licensed patient is a lawful user as far as the state is concerned, but as we have seen, the feds do not care all that much about state law.
In a debate between MPP’s Steve Fox and former head of the ATF Mike Sullivan, Sullivan repeatedly claimed that the ATF’s hands were tied in this matter. Contrary to the claims that the ATF is simply reminding gun dealers about the law, the ATF actually has the discretion to define what they consider to be an “unlawful user.” In the absence of a court decision clarifying the definition, the ATF had every right to issue a memo that instead declared state-legal medical marijuana users to be lawful users and exempt from this particular status. Instead, they decided to use the vague law as a cover to deny sick people their constitutional right to bear arms.
Well, it looks like this might get cleared up in the (reasonably) near future.
On Oct. 4, outspoken Nevada medical marijuana advocate Rowan Wilson was denied purchase of a handgun due to her status as a patient. On Oct. 17, she and her attorney announced that she is suing the ATF and the federal government.
If this case goes to trial, federal judges will have the ability to determine whether patients in jurisdictions that allow the medical use of marijuana are, in fact, unlawful users pursuant to federal firearms laws.
Let’s hope they side with Ms. Wilson.
So far, gun rights activist groups like the National Rifle Association have been largely silent on this issue, but smaller organizations such as the Montana Shooting Sports Association and the Independent Firearms Owners of America have offered their support.
When asked why gun rights activists should support medical marijuana patients in this instance, IFOA president Richard Feldman said, "Republicans, Conservatives and independents need to face the dire economic realities facing our nation and stop funding programs like the war on drugs that don't work, corrupt law enforcement and grow criminal enterprises. Our experience with alcohol prohibition teaches us how to lessen both the harm and the costs to society from banning substances which otherwise law abiding individuals will pursue. As gun owners many of us subscribe to the maxim, 'Better to be caught by the police with one, than by a gang banger without one'! It's time American face reality, deal with it intelligently, and stop protesting it, regardless of the 'it' being guns or marijuana."
In the latest move of the Obama Administration’s incomprehensible attack on medical marijuana, U.S. attorneys announced today that they will begin to prosecute media outlets that publish advertisements for medical marijuana! It seems that when it comes to medical marijuana users, or the states in which they live for that matter, the Bill of Rights means practically nothing.
First, there was the memo released by the ATF this month warning firearms dealers that it was against the law to sell guns or ammunition to medical marijuana patients, effectively eliminating the Second Amendment rights of hundreds of thousands of patients in states where medical marijuana is legal. Then on Friday, when the U.S. attorneys from California unveiled their intent to shut down the medical marijuana industry and drive patients into the hands of gangs and other illicit dealers, they said that one of their core tactics was to intimidate landlords and property owners who rent to dispensaries by threatening them with seizure of their assets. While this may not be a direct violation of the law (unfortunately), it certainly treads on the spirit of the Fourth Amendment’s protections of life, liberty, and property. Now, those same attorneys are stomping on the First Amendment as well.
The actions of the Department of Justice are simply baffling.
In its vain and misguided attempt to stymie medical marijuana and stop the reform movement from making any further policy gains, the DOJ is basically trying to shut down two industries that make money, employ many people throughout California, and earn tax revenue for a state in a disastrous economic situation. Neither of these moves makes any sense. Shutting down the medical marijuana industry is not going to stop marijuana production. Denying them the ability to advertise by prosecuting those who publish the ads will not stop marijuana distributors from making a profit. It will, however, be disastrous for the publishing industry. Both the medical marijuana and publishing industries provide much-needed jobs and revenue to California. These methods are quite simply poor tools to accomplish an illegitimate goal. The fact that the media, which has the ability to sway public opinion against the administration, is being targeted seems particularly stupid.
Now, there are of course justifiable reasons for not allowing advertisement for some illegal activity. It is interesting to note, however, that pharmaceutical companies that sell drugs for billions in profits (the very reason the DOJ claims the marijuana industry is so evil) are allowed to advertise freely in all mediums.
Constitutional and federal law aside, it is morbidly fascinating from a philosophical standpoint that the administration is subverting the right to use marijuana to treat one’s illness by attacking two other, more deeply-held rights. After all, it certainly seems that more Americans care about free speech and property rights than they do about bodily autonomy. Will this policy end up being counterproductive to the stated goals of the administration?
Probably. Just like every facet of prohibition, it is pretty much doomed to failure in the long run.
If you’d like to tell the president how you feel about this, please go here or call (202) 456-1111.
Back in January, this blog mentioned a case in which an anti-marijuana sheriff in Jackson County, Oregon, was trying to deny the renewal of a concealed handgun permit for Cynthia Willis, a licensed medical marijuana patient. The sheriff was so adamant about the case that he took it all the way to the Oregon Supreme Court. His primary argument was that granting a concealed handgun license to a patient (or in his terms, drug user) would be a violation of the Federal Gun Control Act. This law makes it illegal for anyone using or possessing an illegal drug to own or use a firearm. And of course, the federal government still considers marijuana in any form to be illegal.
Today, the court ruled unanimously that being a medical marijuana patient does not strip a person of his or her constitutional rights, at least as far as state law is concerned. From the court’s opinion:
Congress did not directly require the states to use their gun licensing mechanisms for the purpose of keeping guns out of the hands of marijuana users, and we conclude that Congress did not intend to achieve that same result by making it illegal for medical marijuana users to possess guns. The state's decision not to use its gun licensing mechanism as a means of enforcing federal law does not pose an obstacle to the enforcement of that law. Federal officials can effectively enforce the federal prohibition on gun possession by marijuana users by arresting and turning over for prosecution those who violate it.
Ultimately, then, we reject the sheriffs' contention that, to the extent that ORS 166.291 requires county sheriffs to issue CHLs to qualified applicants without regard to their use of medical marijuana, the statute is preempted by the federal prohibition on gun possession by marijuana users at 18 USC section 922(g)(3). The sheriffs cannot justify their denial of the applications at issue on that ground.
Basically, this means that because the Oregon gun licensing law does not substantially interfere with the ability of federal officials to enforce their gun control law, Oregon’s law is not pre-empted and is valid. The sheriff, being a state law enforcement official, must abide by state law and issue canceled handgun licenses to anyone who qualifies under Oregon law, even if that individual wouldn’t qualify under the federal scheme. Because being a medical marijuana patient is not grounds for refusal of a permit in Oregon, the sheriff must grant Ms. Willis’s concealed handgun permit even though she would still be liable under federal law for having a gun while using “illicit narcotics.”
It should. Check out the case of Gonzalez v. Raich (2005), which established that the federal government is free to enforce their marijuana laws despite California’s right to exempt medical marijuana users and caregivers from state criminal liability.
Two cases involving medical marijuana patients have reached the supreme courts of their respective states, and their results could have far-reaching implications for medical marijuana in the future.
In Washington, the state Supreme Court announced it will hear the appeal of a woman who was fired from her job at a telephone call center for testing positive for marijuana on a workplace drug test, despite being a registered medical marijuana patient. While the medical marijuana law in Washington does not protect patients using marijuana in the workplace, the patient had never used her medicine while on the job, and did not work in a role where residual intoxication could prove dangerous to others. Her employer terminated her for using a medicine that she was legally allowed to use in her own home.
It is not known whether this company, Teletech, has fired employees for testing positive for other controlled substances that they have been using legally on the advice of a physician. My guess is they have not.
The final ruling in this case will clarify the rights of employers and employees in medical marijuana states and will no doubt influence the language of future bills, as will the case of Joseph Casias, a Michigan medical marijuana patient who was fired under similar circumstances.
And on March 3, the Oregon Supreme Court will tackle the case of Cynthia Willis, a medical marijuana patient and long-time holder of a concealed-carry handgun permit. Jackson County Sheriff Mike Winters denied Willis' permit renewal after he learned that she was a patient, citing conflict with federal law barring drug users from possessing firearms.
So far, the lower courts have sided with Ms. Willis. Let's hope the highest court in the state does, too. People should never be denied their constitutional rights simply because they are sick.