5 ms·

The flip side is that someone hoping to prosecute a "pot user" for being such while obtaining a firearm would have to prove beyond a reasonable doubt that the s

The flip side is that someone hoping to prosecute a "pot user" for being such while obtaining a firearm would have to prove beyond a reasonable doubt that the suspect was indeed a "pot user" at the time one answered the question. I've submitted to no less than five background checks for purchasing firearms. My ID has also been scanned at multiple dispensaries in the same state as those background checks. Not once has the latter caused any issue with the former - in all likelihood because "I at one point set foot in a dispensary" != "I actually purchased something in that dispensary" != "I actually consumed something purchased from that dispensary" != "I was a user of something purchased from that dispensary at the time that I answered a question about whether or not I use federally-controlled substances". Maybe if background checks included drug tests this would be a practical concern, but as it stands, unless you show up to the gun store stoned out of your gourd (hell, even then), there is little opportunity to demonstrate "the defendant lied about not being a user of illicit substances at the time one purchased the firearm".

notch656c 4y ago
I can not give you legal advice but only tell you my personal understanding for entertainment purposes. And my personal understanding is that the same prohibition applies even for possessing it, not just when you acquire it. My non-lawyer mind it's pretty clear under 18 USC 922. At the end of the day the feds got a warrant to drag me to the hospital and internally search my body for drugs because third party hearsay that an anonymous cop said an anonymous dog supposedly said I had drugs (there were none and their search was fruitless). If third party hearsay is good enough for a warrant why wouldn't video evidence or ID scan of you at the gun store and the pot shop? Sure you can claim "well the test at the hospital shows metabolites and the video shows buying weed and guns but hey you can't prove I actually used weed" but good luck with that.
- yellowapple 4y ago
  The relevant bit(s) would be "It shall be unlawful for any person [...] who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)) [...] to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce." So a prosecutor would need to prove that I was "an unlawful user of or addicted to any controlled substance" at the time that I received a firearm or ammunition that has crossed my state's borders (which would presumably be nearly all the firearms and ammunition I own, but still). There's also the parallel prohibition on the seller's end (and another one involving the actual background check questions), with the same present-tense language of "is an unlawful user of or addicted to any controlled substance". > If third party hearsay is good enough for a warrant why wouldn't video evidence of you at the gun store and the pot shop? A warrant != a conviction. The video evidence of me at both stores would not establish that I was "an unlawful user of or addicted to any controlled substance" at the time that I took possession of the firearm. Now, if there was video evidence of me smoking a phat blunt right outside the gun store before walking in and walking back out with a firearm, then yeah, that'd be a slam dunk case (assuming the prosecutor could convince a jury that it was indeed cannabis I was smoking). Likewise, if I was actually tested for cannabis in my system and the tests indicated that it was indeed in my system at the time I took possession of the firearm, then that would similarly be a slam dunk case. (I guess even in the latter case I could maybe argue "yeah, I was an unlawful user, but I quit before buying the gun", but that defense is pretty weak if it's still in my system; I reckon it'd be stronger if I was sober for an actually-significant amount of time.) Barring those? I ain't a lawyer, either, but my personal understanding is that the present-tense wording leaves a loophole big enough to drive a truck through it. Obviously the safest bet is to not rely on that being the case, but it's pretty easy to answer "No" to "Are you an illegal user of or addicted to any controlled substance?" without it being a felonious lie.
  - GTP 4y ago
    > or possess in or affecting commerce Doesn't this mean that the prohibition of using such substances doesn't apply just to the moment of purchase, but to the whole period of time that you posses a firearm? I'm not a lawyer either and I'm not even American, but this is how I would interpret it. Also it would make little sense to have a law saying that you can't be a user of illegal drugs at the moment of purchase of a firearm, but you can start using such substances afterwards.
    - yellowapple 4y ago
      It would apply as it pertains to being "in or affecting commerce"; it'd be quite the stretch to apply that to possession outside the immediate context of a purchase/sale/transfer, though I suppose it wouldn't be the first time the Feds abused the ever-loving hell out of the Commerce Clause. Maybe taking a gun across state lines while high would qualify? > Also it would make little sense to have a law saying that you can't be a user of illegal drugs at the moment of purchase of a firearm, but you can start using such substances afterwards. The law in question derives from the federal government's Constitutional authority to regulate interstate and international commerce, which is (I would guess) why the language fixates on that aspect. The federal government doesn't otherwise have the power to infringe on the Second, Fourth, and (possibly) Tenth Amendments - as would likely be necessary to federally require gun owners to submit to random drug tests over something that one's state has made legal. Meanwhile, my state (last I checked) has laws on the books separately prohibiting intoxication (be it via cannabis, alcohol, or whatever) while in possession of a firearm; to my knowledge, most (all?) states do.
      - notch656c 4y ago
        Read up on Jeremy Kettler's attempt to avoid interstate commerce and also Wickard v Filburn. You probably know about the latter but not the former. If growing your own plants with nothing but seed and material from the earth on your property, and then feeding it to your local animals is interstate commerce.... then it's hard to imagine any firearm even if made of iron pulled from the earth underneath you and machined on site and never sold to anyone or hell even fired could be considered to not have interstate nexus.
WirelessGigabit 4y ago
The scan of your license does not leave the computer of the dispensary. That is until they get ransomwared. In that case I need to report that my identity has been stolen.

notch656c 4y ago

I can not give you legal advice but only tell you my personal understanding for entertainment purposes. And my personal understanding is that the same prohibition applies even for possessing it, not just when you acquire it. My non-lawyer mind it's pretty clear under 18 USC 922. At the end of the day the feds got a warrant to drag me to the hospital and internally search my body for drugs because third party hearsay that an anonymous cop said an anonymous dog supposedly said I had drugs (there were none and their search was fruitless). If third party hearsay is good enough for a warrant why wouldn't video evidence or ID scan of you at the gun store and the pot shop? Sure you can claim "well the test at the hospital shows metabolites and the video shows buying weed and guns but hey you can't prove I actually used weed" but good luck with that.

yellowapple 4y ago
The relevant bit(s) would be "It shall be unlawful for any person [...] who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)) [...] to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce." So a prosecutor would need to prove that I was "an unlawful user of or addicted to any controlled substance" at the time that I received a firearm or ammunition that has crossed my state's borders (which would presumably be nearly all the firearms and ammunition I own, but still). There's also the parallel prohibition on the seller's end (and another one involving the actual background check questions), with the same present-tense language of "is an unlawful user of or addicted to any controlled substance". > If third party hearsay is good enough for a warrant why wouldn't video evidence of you at the gun store and the pot shop? A warrant != a conviction. The video evidence of me at both stores would not establish that I was "an unlawful user of or addicted to any controlled substance" at the time that I took possession of the firearm. Now, if there was video evidence of me smoking a phat blunt right outside the gun store before walking in and walking back out with a firearm, then yeah, that'd be a slam dunk case (assuming the prosecutor could convince a jury that it was indeed cannabis I was smoking). Likewise, if I was actually tested for cannabis in my system and the tests indicated that it was indeed in my system at the time I took possession of the firearm, then that would similarly be a slam dunk case. (I guess even in the latter case I could maybe argue "yeah, I was an unlawful user, but I quit before buying the gun", but that defense is pretty weak if it's still in my system; I reckon it'd be stronger if I was sober for an actually-significant amount of time.) Barring those? I ain't a lawyer, either, but my personal understanding is that the present-tense wording leaves a loophole big enough to drive a truck through it. Obviously the safest bet is to not rely on that being the case, but it's pretty easy to answer "No" to "Are you an illegal user of or addicted to any controlled substance?" without it being a felonious lie.
- GTP 4y ago
  > or possess in or affecting commerce Doesn't this mean that the prohibition of using such substances doesn't apply just to the moment of purchase, but to the whole period of time that you posses a firearm? I'm not a lawyer either and I'm not even American, but this is how I would interpret it. Also it would make little sense to have a law saying that you can't be a user of illegal drugs at the moment of purchase of a firearm, but you can start using such substances afterwards.
  - yellowapple 4y ago
    It would apply as it pertains to being "in or affecting commerce"; it'd be quite the stretch to apply that to possession outside the immediate context of a purchase/sale/transfer, though I suppose it wouldn't be the first time the Feds abused the ever-loving hell out of the Commerce Clause. Maybe taking a gun across state lines while high would qualify? > Also it would make little sense to have a law saying that you can't be a user of illegal drugs at the moment of purchase of a firearm, but you can start using such substances afterwards. The law in question derives from the federal government's Constitutional authority to regulate interstate and international commerce, which is (I would guess) why the language fixates on that aspect. The federal government doesn't otherwise have the power to infringe on the Second, Fourth, and (possibly) Tenth Amendments - as would likely be necessary to federally require gun owners to submit to random drug tests over something that one's state has made legal. Meanwhile, my state (last I checked) has laws on the books separately prohibiting intoxication (be it via cannabis, alcohol, or whatever) while in possession of a firearm; to my knowledge, most (all?) states do.
    - notch656c 4y ago
      Read up on Jeremy Kettler's attempt to avoid interstate commerce and also Wickard v Filburn. You probably know about the latter but not the former. If growing your own plants with nothing but seed and material from the earth on your property, and then feeding it to your local animals is interstate commerce.... then it's hard to imagine any firearm even if made of iron pulled from the earth underneath you and machined on site and never sold to anyone or hell even fired could be considered to not have interstate nexus.

WirelessGigabit 4y ago

The scan of your license does not leave the computer of the dispensary. That is until they get ransomwared. In that case I need to report that my identity has been stolen.