Illinois Marijuana and Gun Rights

[Trent]

(I don't know if this should remain in legal since it's about pending legislation, and not actual law...?)

DC Dalton pointed out in another thread that Illinois is trying to pass a law that would require mandatory surrendering of FOID and firearms if you receive a medical prescription for marijuana.

Now.. before I go on.. I may look the part of a long haired hippy, but, I don't smoke marijuana, so this personally it wouldn't affect me.

This being said I don't view it as any different than any other drug, if it's legal for prescriptions, so be it. It's legal.

I view this as a prelude to worse things to come; "Oh, you got a codeine subscription for that tooth that was pulled? Please hand in your FOID and firearms."

I mean, seriously. Aside from the obvious ramifications of not carrying a loaded gun while you are intoxicated (which is currently ALREADY against the law in the new IL concealed carry act), *ownership* of firearms shouldn't be contingent of what medicine you are prescribed.

So it's a natural plant that was frowned upon for a few decades? So what! There's prescription drugs out there that are MUCH more potent than marijuana. A person I know from work, was diagnosed with adult ADHD, and issued a prescription for straight up amphetamine. (Boy, did he get a lot of work done after that.. but he went downhill fast about 6 months later when the doctor's doses weren't quite enough.. but that's another story).

Gun ownership is a right, and short of a diagnosed violent mental disorder where you are likely to hurt yourself, or others; receiving prescription medicine shouldn't cost you that right.

Anyway.. there's my rant.

Opinions?

 

[MErl]

I agree with you, it should not matter. Doubly so since the state is approving it for legal use, how can they use the "it is illegal federally" argument in one place but not another.

Unfortunately your state government hates guns and is going to do whatever they can to make them unavailable. I don't see your fear of it spreading other prescriptions as they are not illegal on a federal level, nothing to stand on there.

 

[rule303]

Marijuana use is a federal disqualifier for firearm possession. The state can make it legal to use the drug within that state, but it is still against federal law. Revocation of a FOID card would be redundant since a MJ user would already be breaking federal law.

 

[pezo]

Beaten horse alert here. Marihuana is still federally illegal everywhere in the god old US. So even with a "card" a medical user would be federally prohibited from possessing guns and ammo. Federal trumps states laws.

 

[Sam1911]

Yeah, the issue isn't so much that you have a prescription for a scheduled drug like Codeine. The issue is that they're considering having the card as prima facie evidence that you ARE a prohibited person, vis-a-vis firearms possession, under federal law.

Taking Codeine under prescription doesn't get you there because that isn't federally illegal.

The oddity is that IL is walking an interesting line, saying "We're ignoring/facilitating our residents breaking federal law on the one hand. BUT, we'll recognize federal law on the other hand and use it as an excuse to enforce state law against you."

If they wanted to play fast and loose with federal law, well, that's an interesting experiment and I wish them the best with it. (Like I do with the MT firearms freedom act, and others like that.) But if they are going to do that, wouldn't it seem awfully internally consistent to then NOT use that same issue to put the screws to their residents in areas where they find it more convenient?

I may tell my kids, "Mommy says it's bedtime at 8:00, but I really want you to see this movie, so I don't care about the rules." But then do then tell them they're still grounded for staying up late, against the rules?

Seems that would make me a hypocrite. Or maybe just a jackass.

 

[MErl]

Marijuana use is a federal disqualifier for firearm possession. The state can make it legal to use the drug within that state, but it is still against federal law. Revocation of a FOID card would be redundant since a MJ user would already be breaking federal law.

Beaten horse for sure but the state is being inconsistent in their application of the laws. The state is saying it is okay to posses MJ (with a prescription) and defying federal law to do so while at the same time they are saying they will enforce federal law regarding MJ and guns.

This has nothing to do with MJ and everything to do with guns, the more people the state can make prohibited the better.

 

[Trent]

To the best of my knowledge, I've never heard of them revoking someone's FOID card over a marijuana possession violation.

In fact, the FOID application only asks the question "Are you addicted to narcotics?"; it does not mention marijuana specifically. Narcotics could mean anything, including controlled prescription medicines (which lots of people get addicted to).

It would seem that (for State law), the burden would need to be placed on proving that the person is addicted, vs. being an infrequent casual (or medically indicated) user.

This just confuses me.

 

[steve4102]

This has nothing to do with MJ and everything to do with guns, the more people the state can make prohibited the better.

What else could it be.

 

[Frank Ettin]

This has been coming up a lot, but let's cut to the chase:

1. State law on marijuana is irrelevant.
   
   
2. Under federal law (the Controlled Substances Act, 21 USC 801, et seq.), marijuana is a Schedule I controlled substance which may not, therefore, be lawfully prescribed or used. Therefore, any user of marijuana, even if legal under state law, is, under federal law, an unlawful user of a controlled substance.
   
   
3. Under federal law, a person who is an unlawful user of a controlled substance is prohibited from possessing a gun or ammunition (18 USC 922(g)(3)). Therefore, any one who is a user of marijuana, even if legal under state law, is a prohibited person and commits a federal felony by possessing a gun or ammunition.
   
   
4. Federal law defines "unlawful user" as follows (27 CFR 478.11):

   Unlawful user of or addicted to any controlled substance. A person who uses a controlled substance and has lost the power of self-control with reference to the use of controlled substance; and any person who is a current user of a controlled substance in a manner other than as prescribed by a licensed physician. Such use is not limited to the use of drugs on a particular day, or within a matter of days or weeks before, but rather that the unlawful use has occurred recently enough to indicate that the individual is actively engaged in such conduct. A person may be an unlawful current user of a controlled substance even though the substance is not being used at the precise time the person seeks to acquire a firearm or receives or possesses a firearm. An inference of current use may be drawn from evidence of a recent use or possession of a controlled substance or a pattern of use or possession that reasonably covers the present time, e.g., a conviction for use or possession of a controlled substance within the past year; multiple arrests for such offenses within the past 5 years if the most recent arrest occurred within the past year; or persons found through a drug test to use a controlled substance unlawfully, provided that the test was administered within the past year. For a current or former member of the Armed Forces, an inference of current use may be drawn from recent disciplinary or other administrative action based on confirmed drug use, e.g., court-martial conviction, nonjudicial punishment, or an administrative discharge based on drug use or drug rehabilitation failure.

   
   
5. And in U.S. v. Burchard, 580 F.3d 341 (6th Cir., 2009) the Sixth Circuit found that (at 355):

   ...the regular use of a controlled substance either close in time to or contemporaneous with the period of time he possessed the firearm...

   would support conviction under 18 USC 922(g)(3).
   
   
6. Being a prohibited person in possession of a gun or ammunition is punishable by up to five years in federal prison and/or a fine. And since it's a felony, conviction will result in a lifetime loss of gun rights.

And so, for anyone gnashing his teeth and rending his garments about this being wrong:

1. The law at present is that someone who is an unlawful user of a controlled substance (including a user of marijuana, even under a state medical marijuana law) is prohibited under federal law from having possession of a gun.
   
   
2. That could be fixed. Congress could amend 18 USC 922(g) to provide that an unlawful user of a controlled substance would not include someone using marijuana under a state medical marijuana law. Or Congress could amend the Controlled Substances Act to provide for the lawful prescribing of marijuana (just as it does for Oxycontin). Or Congress could fix this in a variety of other ways.
   
   
3. So have you written you Congressional representatives?

...The oddity is that IL is walking an interesting line, saying "We're ignoring/facilitating our residents breaking federal law on the one hand. BUT, we'll recognize federal law on the other hand and use it as an excuse to enforce state law against you."...

And that's an interesting perspective and probably is largely reflective of the political dynamics of the State.

 

[NickEllis]

Under federal law (the Controlled Substances Act, 21 USC 801, et seq.), marijuana is a Schedule I controlled substance which may not, therefore, be lawfully prescribed or used. Therefore, any user of marijuana, even if legal under state law, is, under federal law, an unlawful user of a controlled substance.

Does federal law also define a caregiver or medical professional as an "unlawful user"? Apparently Illinois is extending the FOID card revocation to these as well, even if they don't use it.

 

[Frank Ettin]

Under federal law (the Controlled Substances Act, 21 USC 801, et seq.), marijuana is a Schedule I controlled substance which may not, therefore, be lawfully prescribed or used. Therefore, any user of marijuana, even if legal under state law, is, under federal law, an unlawful user of a controlled substance.

Does federal law also define a caregiver or medical professional as an "unlawful user"? Apparently Illinois is extending the FOID card revocation to these as well, even if they don't use it.

No, federal law doesn't extend that far. That's clear overreaching on the part of Illinois.

 

[Trent]

Thanks for the clarification, Fred.

So, from reading what you wrote; it really doesn't matter what state law says, it's prohibited.

But if the State passes this law, and then the Federal government reverses their direction, it's still prohibited. (Instead of fading away).

Keep in mind there's some additional dynamics that interact with this:

** Mental health reporting is now mandatory in Illinois, for gun owners (Which is why I was concerned about the prescriptions for other drugs being included at some point)

** An FOID revocation now elicits a mandatory response from law enforcement; upon revocation the person is served with notice and has 48 hours to surrender all firearms or transfer them to another person. Failure respond to the notice within 48 hours results in a search and seizure warrant being issued, and subsequent forfeiture of all firearms, plus arrest... (This was snuck in when we got our Concealed Carry act passed...)

 

[Frank Ettin]

Thanks for the clarification, Fred...

Why do people keep calling me Fred?

 

[NickEllis]

LOL

Actually, I sometimes confuse you subconsciously with "Fred Fuller", the other moderator. Which doesn't make any sense, but there you go.

 

[dc dalton]

Yeah, the issue isn't so much that you have a prescription for a scheduled drug like Codeine. The issue is that they're considering having the card as prima facie evidence that you ARE a prohibited person, vis-a-vis firearms possession, under federal law.

If they wanted to play fast and loose with federal law, well, that's an interesting experiment and I wish them the best with it. (Like I do with the MT firearms freedom act, and others like that.) But if they are going to do that, wouldn't it seem awfully internally consistent to then NOT use that same issue to put the screws to their residents in areas where they find it more convenient?

Your points are right along my thoughts and if they were in fact able to get a law like this passed I'm pretty sure it would get struck down by the courts in a heartbeat (at least the state courts).

Fact of the matter is the federal government needs to get their heads out of their proverbial butts and take MJ off the controlled substance list. I think the latest polls showed something like 60%+ of those polled now think it is no more dangerous than alcohol and just about all the new studies agree with that. Add to that the very clear usefulness it has show in medicine it's a no-brainer.

This country has wasted far too much money on this part of the 'war on drugs'

 

[Trent]

Why do people keep calling me Fred?

It's OK, Fred.. I mean Frank. I get my kid's names mixed up too.

In all seriousness, I do have to proofread what I type, as I occasionally still get words mixed up. (traumatic brain injury in a motorcycle crash back in 2010).

It's not nearly as bad as it used to be a few years ago, but every once in a while I'll be talking and someone will look at me funny. I'll go "Ok... what did I just say that didn't make any sense?"

At least when I type a message 99% of the time I can correct it when I read it; when I talk, I don't get that benefit. I just get a confused look followed by an explanation as to why I just said "pass me the chicken" when I meant "pass me the stapler", or whatever.