Prohibition

Army Vet Denied Second Amendment Right Due to High School Marijuana Charges

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.

[caption id="attachment_6718" align="alignleft" width="240"]Ron Kelly Ron Kelly[/caption]

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.

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Medical Marijuana

Oregon Supreme Court Affirms Gun Rights for Patients

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.”

Sound familiar?

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.

 

 

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