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By Louis K. Bonham

The United States Court of Appeals for the Ninth Circuit has affirmed the dismissal of a Nevada medical marijuana card holder’s challenge to the BATFE’s “Open Letter” to FFL’s, as well as the underlying statutes and regulations. The July 2011 “Open Letter” directed FFL’s not to sell guns or ammunition to users of marijuana, even where such use has been legalized or decriminalized under state law. Put simply, the BATFE’s position is that (emphasis added):

“[A]ny 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, and is prohibited by Federal law from possessing firearms or ammunition.

Such persons should answer “yes” to question 11.e. on ATF Form 4473 . . . and you may not transfer firearms or ammunition to them. Further, if you are aware that the potential transferee is in possession of a card authorizing the possession and use of marijuana under State law, then you have “reasonable cause to believe” that the person is an unlawful user of a controlled substance. As such, you may not transfer firearms or ammunition to the person, even if the person answered “no” to question 11.e. on ATF Form 4473.”

Ms. Wilson is the holder of a medical marijuana card issued by the State of Nevada. When she attempted to purchase a firearm from a Nevada FFL, the store owner stopped her from answering Question 11e on the Form 4473 because he knew she had a medical marijuana card. Wilson then handed in the 4473 with Question 10e left blank.

Having received the BATFE “Open Letter” a few days before, the FFL refused to sell the firearm to her. Wilson then filed suit in federal court, asserting that the BATFE’s position and the underlying statutes and regulations prohibiting illegal drug users from purchasing firearms or ammunition violated her constitutional rights.

Affirming the dismissal of her lawsuit, the Ninth Circuit held that the prohibition on unlawful drug users purchasing firearms or ammunition was not a Second Amendment violation. Citing its previous decision of United States v. Dugan, the Court reasoned that just as felons and the mentally ill can lawfully be prohibited persons, so too can users of illegal drugs.

Interestingly, the Court then sidestepped the Second Amendment issue somewhat by finding that a prohibition on purchasing firearms or ammunition only regulated the manner in which Wilson could exercise her Second Amendment rights, because “Wilson could have amassed legal firearms before acquiring a registry card, and [the law and] the Open Letter would not have impeded her right to keep her firearms or to use them to protect herself and her home.”

The Court therefore applied intermediate, rather than strict, scrutiny to the challenged law, and finding the legislative determination that illegal drug users were “presumptively risky people,” found that the law survived the challenge. The Court found that this was the case even if it accepted Wilson’s position that she did not actually use marijuana and had obtained the registry card as a political statement.

The Ninth Circuit’s opinion  was hardly unexpected, given that Court’s usual hostility to Second Amendment rights. Nevertheless, the degree of legal gymnastics the Court had to employ to reach its desired result is surprising.

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  1. This is hardly a shock, I remember this coming up as early as 2000 as a potential future problem, since they can prove you lied on your 4473. Now, if California had legal recreational use like Wa. or Co. I can see folks getting quite a bit more fired up over the issue.

    • Or if California allowed you to have any civil rights at all… They’d be up in arms. At this point I just see the ninth circuit as a way to push California’s laws/agenda upon the entire west coast.

      • We’ll have legal pot long before new semi-auto pistols and standard capacity magazines are allowed. Then the cognitive dissonance will go exponential.

      • the ’68 gun control act set us back to the feudal system, where only those authorized by the shogun or lord were able to own weapons (form 4473 anyone?). Before that, that progressives had not made that much progress so we were free.

        I dunno why the liberals call it progress even, the way they have it pointed, you will have to register you spears and clubs and anyone caught knaping arrow heads with out license will be thrown to the tar pits for the wolfs and saber tooth tigers to eat.

  2. Does this mean a 20 year old who drinks beer (a controlled substance, technically) can’t buy a firearm?

    • That question crossed my mind as well. I can see a situation where the definition of “controlled substance” is expanded to include other substances, including alcohol. Doesn’t it impair a person’s mental and physical abilities like pot or other drugs? Isn’t it addictive in some cases like pot? Sure, I can see a hostile anti-Constitutional court like the Ninth Circuit or the thugs at the BATFE jumping the shark in this manner one day. And, why stop there? how about commonly prescribed medications that have known side effects? It would be a great way for the Central Government to “legally” disarm citizens.

      • 11.e “Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?”

        Yes. It covers alcohol, which is a depressant. “Control” of the chemical is not the question. Addicted to coffee? Well that contains caffeine which is a stimulant so no guns for you.

        Sorry, it’s plain and simple language: narcotics, controlled substances and pot are a no go. Also any depressant or stimulant, if legal, is a no go if you are addicted. Technically that covers smokers or other tobacco users and someone who needs a cup of Joe in the morning. ATF hasn’t “interpreted” it that way yet, but they are more than free to do so by writing a letter that “clarifies” things.

        All you have to do is actually read what’s on the 4473. It ain’t hard.

        So yes, an underage drinker is an “unlawful user” of a “depressant” and therefore barred. You don’t have to like it but it’s technically true. Nothing in that statement says the individual substance has to be “controlled” (illegal). It just has to be a stimulant or a depressant.

        Let that soak in and realize how fucked we are.

        • Thus is another example of how modern prohibition and the war on (some) drugs is just another avenue for the government to violate our rights.

        • We are not F*ked!

          They are if they try to enforce it!

          I really really would like to see them try.

          They can come for mine next time I got to the local Starbucks.

    • No, the letter refers to The Gun Control Act of 1968 (18 U.S.C. 922 (d)) which, in part states:
      “It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person— …(3) 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));”

      The Controlled Substances Act lists the following only (since Prohibition was repealed I assume):
      16) The term “marihuana” means all parts of the plant Cannabis sativa L.
      (17) The term “narcotic drug” means any of the following whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis:
      (A) Opium, opiates, derivatives of opium and opiates, including their isomers, esters, ethers, salts, and salts of isomers, esters, and ethers, whenever the existence of such isomers, esters, ethers, and salts is possible within the specific chemical designation. Such term does not include the isoquinoline alkaloids of opium.
      (B) Poppy straw and concentrate of poppy straw.
      (C) Coca leaves, except coca leaves and extracts of coca leaves from which cocaine, ecgonine, and derivatives of ecgonine or their salts have been removed.
      (D) Cocaine, its salts, optical and geometric isomers, and salts of isomers.
      (E) Ecgonine, its derivatives, their salts, isomers, and salts of isomers.
      (F) Any compound, mixture, or preparation which contains any quantity of any of the substances referred to in subparagraphs (A) through (E).

      • Nonsense. Read 11.e in plain English. It doesn’t have to be a “controlled substance” it just has to fall under any of the headings they mention.

        Don’t like it? Doesn’t matter. Doesn’t cover something? ATF can write a letter carrying the force of law to “clarify” the situation and make you a criminal.

        Under a plain reading the the text it’s very clear that a smoker or a coffee fan is barred from ownership.

        • Agree. Well well well. It’s seems the 9th circus is capable of understanding the law and ruling based on what it says. When it wants to.

    • Jason, alcohol is “technically” not a controlled substance. Please see the Controlled Substance Act of 1970 and the Scheduled Drug List. Marijuana is a Schedule 1 drug, meaning no medical use.

      • If it’s not controlled, then try making your own liquor and selling it to a 20 year old and see just how uncontrolled it is.

        • Selling vs consumption. Important legal distinction given the constitutional issues around the consumption of alcohol.

  3. Who actually marks themselves as being chemically dependent? This is going to change nothing I doubt the FBI has data on who uses medical Marijuana and anyone who smokes illegally areally not going to put themselves down as so.

    • I don’t use or have a need to but expect the FBI or state police in a poc state to know if you have an issued medical card. They can know and expect denials. Imo this plus doctors snooping around patients home lives is going to result in the Democrats agenda being fulfilled. A nationalized reporting/tattle system. Their all socialist scum.

    • With out the medical marijuana card they don’t know. Just pay full price for the pot.

      I suspect there are many marijuana users with guns in Colorado. Just like concealed carry the sky didn’t fall.

      The push on pot is from Big Pharma and the antis. They are losing millions.

    • Matt, I’m surprised that the “Medical Marijuana Card” lists have not been subpoenad and analyzed by the BATFE yet.

  4. No violence or aggression on the part of the citizen required. Only one thing needs to happen in order to have your rights restored. Stop feeding the beast. Stop paying taxes en masse. Watch everything grind to a halt.

    If a handful of people do it, then they’ll get made examples out of surely, but if millions of people do it? The bureaucracy can’t handle that kind of workload.

      • Form W-4: Claim 99 personal exemptions. That’ll prevent withholding on your first $400,000 or so in wages.

        • Wrong. Claim more than 9 and you will get a letter from the IRS asking for names and SSN’s. If you ignore that your employer gets a “lock in letter” and they withhold you at single and none until you respond to the IRS and then a couple of months later they will send your employer another letter that allows you to fill out a new W9 with what you proved to the IRS.

    • Stop paying taxes? You make me laugh! Hoo–hoo! Wipe the tears from my eyes it’s so funny!!! Ever hear of withholding? As a small business owner, I wouldn’t go to jail over my employees principles. I’m tickled to think that you even think this would work! He, he!!! The government has printing presses. Best thing they could do is eliminate all taxes altogether and just print what they need. It’s exactly what they are doing now except that by having taxes, it gives them control over the populace. ROTFL!

    • The answer is to take our country back by any and all means.

      Yes, I mean by force if necessary.

      Molon labe

      • Please list the people against whom you will use force. In other words, people you will threaten to shoot or will shoot. Got friends? A LOT of friends? How will you take and hold territory? Supply chain? Logistics? Think the government will maybe, just maybe, fight back?

        • resistance and insurgency not hold territory. And no real need for violent resistance. Just large enough armed groups to defend themselves against violence. Think of the civil rights movement.

          A good place to start would be to hurt governments ability to borrow money. This could easily be done by pressuring investors not to buy the debt. Even easier with cities.

          Also what about punishing house members with “sanctions ” against business in their districts if they vote the wrong way. Distorts with heavy tourism for example could be shit down with mass protest. You only have to hurt a few members on key committees.

  5. 1). Again, more government run amok!
    2.) If this is the case. Why hasn’t Law enforcement gone down to Ex-Prez. Bill Clinton’s manor and confiscated all his firearms. Since he is an admitted illegal drug user.
    3.) If this same sort of legal court thinking is applied to say all Democrats in public office that have used, or are users of illegal drugs…Shouldn’t they be “immediately ” stripped of their public office, and all firearms confiscated…
    4.) Obviously, this applies to the President right?! Prez.O is an admitted illegal drug user. He is in possession, or has access to “Not only Firearms, but WMD—such as Atomic Weapons !!!” Why haven’t the Republicans started a move for immediate impeachment !!? As an illegal drug user Barack Obama is unfit to be the President of the United States of America! And a hold of any political office !

    • Piss on Bill Clinton, the current POTUS is also a confessed user, confiscate all firearms from 1600 Pennsylvania Ave.

  6. “Nevertheless, the degree of legal gymnastics the Court had to employ…”

    Really? The court applied federal law AS WRITTEN. How is that a demonstration of fabulous gymnastics? Too much Olympics for you, lately?

    • The gymnastics are that they enforced only half the law (purchase) and ignored the other half (possession).

    • We have plenty of guidance telling us that the 2A is a fundamental right, and violations of it are subject to strict scrutiny.

      If you have to drop that to intermediate scrutiny in order to explain the violation away, and base your explanation on nonexistent federal drug laws (we haven’t had a federal drug ban in 80 years, the feds haven’t even had the authority to ban any drugs since the ratification of the 21st Amendment in1933).

      • Is not maryjuwanna a schedule 1 drug, still? Is it not against federal law to possess, distribute or grow? If so, how is deciding that someone who uses (evidenced by a medical card) violates federal law, and under federal gun laws is prohibited from buying a gun? If maryjuwanna is not federally illegal, why all the fuss over whether DEA will enforce federal law in a state where mary jane is legal? Why is clear reading of the federal law (clear referencing)? When filling out the background check form, are you asked if you use federally prohibited drugs? If yes, then why is it “intermediate” scrutiny” to declare the law means what is says, as written? Whether federal drug laws may restrict 2A rights may be a matter of “intermediate scrutiny”, but the laws exist. The appellant did not question whether the drug laws were legal restrictions, only that the federal government cannot prohibit what the state permits. Maybe it would have been more enlightening if the appellant had challenged to drug law itself, rather than the conflict between state and federal,

        • Show me where, outside of the 19th Amendment, the feral government was given the power to control substances.

          The plaintiff didn’t bother to make that argument, because they know there isn’t a single feral judge in the entire country who’s interested in actually enforcing the Constitution as it’s written.

          • All your legislation is derivative of your constitution. Legislation is the engine of your laws.

            Don’t like legislation, obtain political power to have it your way. Can’t do that? Then what are you complaining about, to whom are you complaining, what do you expect the outcome of complaining to be?

            Can’t get laws passed to suit you? Try the courts. When the Executive and the Legislature will not be responsive to your preferences, the courts are the last resort. Have the laws you don’t like overturned.

            It is fun and games to declare all laws you do not like null and void. Act upon that notion. Who will break you out of jail?

  7. “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, and is prohibited by Federal law from possessing firearms or ammunition.”

    So the BATFE says “prohibited from possessing…” and the 9th Circus says it’s OK if you already own them but you can’t buy any new ones? Waiting to see the court case that comes up when BATFE shows up at her door to confiscate any previously owned or legally purchased from relatives or friends firearms. Or obtains a list of persons who have medical marijuana cards and goes door to door with federal warrants to search for firearms.

    • I noticed too that the 9th only “half” enforced the BATFE letter, focusing on purchase and ignoring possession. Further proof that the anti-gun 9th does what Anton Scalia called a “moderate interpretation” of the Constitution:

      “What is a moderate interpretation of the text? Halfway between what it really means and what you’d like it to mean?”
      “The cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites.”
      -Anton Scalia, Supreme Court Justice

  8. I got a very old high school friend who still partakes of the ganja. And he has a boatload of guns. Then again I doubt he obtains his firearms with a 4473. Such is life in rural Illinois. All you potheads just need to go underground (you won’t get former marijuana dealer Bury Soetoro on your side-you have to be VIOLENT and serve time in a federal pen)…sorry.

    • And, just like a squatter upon your land, the courts and legislatures use a fuzzy logic based on estoppel to justify their continued trespassing. I’ve been arguing this point literally since I was a child. I’ve read between the lines of so many cases of gross government overreach and the bottom line rationale behind them is always that we’ve been allowed to control A so it stands valid while we attempt to control B. When A and B remain unchallenged over a long period of time, we we assert our privilege to regulate C. All infringement requires immediate and vigorous challenge. Only belligerents have rights so, in order to not create a sort of estoppel, we must fight early and often.

  9. How did the FFL know she had a MMJ card? Are the two databases somehow linked in NV? Seems like it would have just been easier to go the private sale route and just buy a firearm that way. No 4473 involved.

    • As the ACLU quipped a lien from Field of Dreams in its opposition to a federal firearm registration database because other government organization will certainly cross-reference it…”If you build it, they will come”

  10. Well isn’t this a good reason to start impeachment! The courts have spoken ! All Democrats *(illegal drug users–Beware!)* in public office who are, or have used “illegal drugs ” should be immediately stripped of public office—-period! All Democrats involved in illegal drugs should surrender, or have all weapons /firearms confiscated under court ruling!

  11. So does this decision mean that the members of the Ninth Circus are barred from firearms ownership? Because I’m pretty sure that those judicial clowns are smoking something, and it ain’t Captain Black.

  12. where this will go:

    you get busted for whatever
    you are packing heat
    they give you a whiz quiz in jail
    original charges dropped
    owning a gun while your pee is positive: guilty

    caught you with your ( ganja )
    found with your gun
    no smooth efficient lawyer
    can get you undone
    the judges constipation
    goes to his head
    in his wise aggravation
    you soon end up dead

  13. Wait….pot smokers aren’t citizens? They give up their rights when they partake of something that is legal to partake of?

      • It isn’t. It can’t be. Laws repugnant to the Constitution are null and void. And the Constitution never authorized the government to ban marijuana. It once authorized the government to ban alcohol, but that ended in 1933.

        • “Laws repugnant to the Constitution are null and void.”

          Is there SC precedent for this statement? Has anyone ever had a court rule in favor of a challenge no more complicated that the simple statement you posted? Was the quote contained in a dissent opinion? I would think that if the statement quoted were “bulletproof”, many SC cases would have been settled at oral argument.

          I like your thinking, but acting on the idea seems doomed.

        • Well you just stop obeying all those repugnant laws then, sovereign citizen. You might want to determine who is going to fund your commissary account first though.

    • Chip, they are considered drug users and drug addicted, hence a ‘danger to the community’. For that reason they are prohibited from possessing dangerous devices.

      • Not according to this rendition of the 9th decision, they are prohibited from purchasing, but not from possessing, which takes really advanced creative judging.

  14. Dude, MaryJane is illegal per the federal government – how is this hard to understand?
    Regardless if 2 or 42 states make it legal, but the federal gov’t doesn’t, then it’s still illegal by the entity that the ATF belongs to.
    If anybody is still confused, then you have smoked too much already!

    • Dude, perhaps read the 10th Amendment, then look for the place in the US Constitution where it says the Feds have authority to trump State laws.

  15. I don’t smoke pot, but many of my friends do, PhD’s, lawyers, engineers, salesmen, it’s very common place. And it’s not even legal in Texas.

    Now, all that being said, I’d rather be next to an armed stoner than an armed drunk.

    • I am always amazed, having worked both blue collar and white collar jobs, how many people smoke weed now. My wife and I are straight edge and when people find this out, you can almost feel the disquiet in the conversation. It almost like revealing you are a leper.

  16. I know people who would self-identify as “drug addicts” even though they have been sober for years. It’s part of some recovery processes to admit your addiction whether or not you use. So a sober, recovering drug addict = no gun rights?

    • Well, I know an alcoholic who’s been sober over 35 years, not only has a nice collection but a carry license, buys regularly, carries on airplanes!!! Of course, he’s an FAA flight examiner, but hey … Still hits 2-3 AA meetings every week.

  17. Legalize it. So much for pursuit of happiness. Bye bye due process they don’t need to prove the person is smoking pot. Just have a card. They may not be actively smoking pot any longer because their illness is getting better or they found a better alternative. But the law is toward the gun shop not the buyer. You can’t do federally illegal stuff and buy guns. Simple, we need to change the federal law and legalize it.

  18. Interestingly, the Court then sidestepped the Second Amendment issue somewhat by finding that a prohibition on purchasing firearms or ammunition only regulated the manner in which Wilson could exercise her Second Amendment rights, because “Wilson could have amassed legal firearms before acquiring a registry card, and [the law and] the Open Letter would not have impeded her right to keep her firearms or to use them to protect herself and her home.”

    I finally have a legal reason that compels me to amass firearms and ammunition! Whoo hoo! Local gun stores, here I come!

    • It was an interesting choice of words “amass”. They wouldn’t have chosen that word for any other item. It’s like the way the press uses the word “compound” to describe anyone’s house that they don’t like.

  19. Twenty-five States and District of Colombia already have laws that legalize marijuana for medicinal and/or recreational uses. So, this ruling might cause quite a flap particularly where recreational use of weed is legal. One comment said, “I doubt the FBI has data on who uses medical Marijuana…”. I do not know either way for a fact, but I would not just blithely assume the Fed has no data on the matter. I do not know if there’s any tracking where recreational cannabis is legal, but since the cannabis retailers must deal in cash transactions owing to Federal Law, there would be no ‘alternative to cash’ records of cannabis product purchases and I am not aware of any State legal pot retailers recording the names of their customers. So, this might be a “toothless” ruling except for those buying via a Medicinal Marijuana card or permit where the issuance of the card or permit is recorded by the issuing State.

    Nevertheless, since it is a legal ruling under existing Federal law it puts possibly millions of Americans into the awkward position of being de facto felons should they be caught in possession of cannabis and firearms or ammunition by some other circumstance.

    Here’s a map of States who have legalized cannabis to one extent or another:

    I am wondering if there’s a 10th Amendment issue/conundrum here and who is in violation. Has the Fed overstepped by declaring cannabis a “controlled substance”, or are the States in violation for legalizing cannabis in contravention to Federal Law?
    If the Second Amendment is a Federal Law, would States who enact laws infringing the Second Amendment Rights of Americans, then be in violation of the 10th Amendment? It seems the Courts have no stomach for clarifying this matter, but readily invoke it to suit a political agenda.

      • Heroin “Once in the brain, it then is deacetylated variously into the inactive 3-monoacetylmorphine and the active 6-monoacetylmorphine (6-MAM), and then to morphine, which bind to μ-opioid receptors, resulting in the drug’s euphoric, analgesic (pain relief), and anxiolytic (anti-anxiety) effects;”

        That is to say, heroin is metabolized into morphine before it acts on the brain receptors, in short, morphine is exactly, prescribed heroin.

        • Mr, 308, I’m not a doctor of pharmacology, but for purposes of the CSA and GCA prescribed opiods are not considered heroin. Heroin just like Marijuana is classified as a Schedule 1 drug (no medical uses) , prescribed opiods are mostly Schedule 2.

        • Mr .308 was pointing out the chemical reality, not what the .gov’s silly regs look like. Chemically speaking, all the script drugs break-down to a morphine, just like heroin. As far as researchers have been able to tell, Adderall acts exactly as methamphetamine does once it hits your brain. No reason it shouldn’t – it’s in the same basic class.

          The reason drugs get you high is that they contain chemicals that your body already makes, and hence, has receptors for. The “drugs” are essentially just a little extra of what you already have.

        • Technically most all the metabolic activity occurs in the liver and intestines, not the brain. There is also some implication in the way the statements worded that Heroin is somehow “bad” and thus morphine is “bad” by relation. The reality is that US drug laws are stupid and make no logical sense. Heroin is no different than many other pain medications and is used as a frontline tool for acute pain in the UK (if you break your leg while on vacation in london you’re likely to get dosed with heroin to stop the screaming).

          Regardless, I’m glad this story got published. As someone with a lovely supply of medical problems I probably would have tried medical MJ if/when it was legalized in my state, now I know to stay the heck away from it until these issues get ironed out (which is too bad, I’ve read it can be quite effective for UC/Crohn’s patients).

  20. You can debate if the law is right or wrong morally speaking, but legally the law is right and she’s fucked.

    11.e “Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?”

    Under federal law she’s an unlawful user. Case closed.

    Now, let’s expand a bit. Look at the actual language of 11.e.

    That covers smokers, dippers, coffee drinkers etc.

    Sorry, you can argue all you want that it doesn’t but the plain text says it does. It specifically mentioned pot, narcotics and controlled substances but it also says “depressant” and “stimulant” without explicitly declaring that such things need be illegal or controlled. It doesn’t say “cocaine” or “illegal depressant” or “illegal stimulant”.

    The only thing that matters is that you are, in whatever sense the BATFE wants to use “addicted” to any depressant or stimulant. The legality of such is irrelevant under the language. Gotta have that Joe to get moving in the morning? You can’t own a gun. Gotta have that “nightcap” at night? Barred. Need that smoke after lunch? No guns for you, you fucking addict!

    In fact you don’t even need to “need” it you just have to fall under what they call an “addict”. Just look at the literature on alcoholism. Do you use alcohol to relax or “de-stress” welp, you’re a boozeaholic and no guns for you!

    Sorry folks all this needs is a “letter” from the ATF carrying the weight of law to “clarify” things and the list of people who can’t own a gun legally, or have to lie on the 4473 (a crime btw) massively expands.

    • “Under federal law she’s an unlawful user. Case closed.”

      11.e. Does not say “under federal law”, case reopened. “Unlawful” means subject to some manner of interference or punishment, and there is none, federal or state, de facto there is no such law, congress has not gotten around to removing it from the books, except in DC, where they HAVE!

    • Incorrect. The question on the 4473 is a paraphrasing of the language in the law. The underlying law (GCA 68) is specific and does not include any legal substances. Any attempt to ban smokers, drinkers or coffee users would fail on court challenge and an answer of no to the question would not be a violation of the law.

      “Controlled substance” is a legal term of art. Just because there are age restrictions on alcohol and tobacco does not make them “controlled substances” under the law.

      FWIW, IANAL, nor do I play one on TV.

  21. When was Congress granted the extra legal power to delegate their main legal powers to a body of the executive branch?

    Can the POTUS give the SCOTUS it’s power to initiate bills into law, too?

  22. Strych,

    “Now, let’s expand a bit. Look at the actual language of 11.e.

    “That covers smokers, dippers, coffee drinkers etc.”

    That would be incorrect. From Title 18 USC 922, this is the law where the language used in the form 4473 comes from:

    (d) It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person—
    (1) is under indictment for, or has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
    (2) is a fugitive from justice;
    (3) 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));

    And from Title 21 USC 802, the definition you are looking for:

    “The term “control” means to add a drug or other substance, or immediate precursor, to a schedule under part B of this subchapter, whether by transfer from another schedule or otherwise.
    (6) The term “controlled substance” means a drug or other substance, or immediate precursor, included in schedule I, II, III, IV, or V of part B of this subchapter. The term does not include distilled spirits, wine, malt beverages, or tobacco, as those terms are defined or used in subtitle E of the Internal Revenue Code of 1986.”

    So smokers, drinkers and snuff users take heart, you’re not a ‘Prohibited Person’. ?

    • Nope. Look at the actual language of 11.e and understand that the BATFE has been granted the power to make law simply by providing an opinion.

      “…or any depressant, stimulant” it doesn’t say the depressant or stimulant has to be legal.

      Sorry, all the BATFE needs to do is write a letter changing it’s opinion on this and it covers everything. The EPA and BLM have already proved this to be the case and they went so far as literally rewriting the definition of “navigable”.

      These agencies have the ability to write law by opinion and their opinion is the law. That’s settled case law right there. They need not refer to actual statute to do so. This is what happens when Congress turns over their authority. Here, this guy is actually a high powered lawyer and he’ll explain how the BATFE has the power to do this in context of the SIG brace.

      Sorry. ATF has the powa, not you. Argue all you want, they’ll just write a new letter declaring you wrong and the courts will accept it. You don’t have to like it, but you’ll bite the pillow if you do what they say not to do. You can quote the USC ’til you’re blue in the face. You’re still wrong if the BATFE says so.

      Now that you’ve been fully educated, tell me where I’m wrong.

      • Where you are wrong is that the ATF cannot enact regulations that exceed the scope of the authorizing statute. So the court will look at the reg, but it will look at the statute first, and the statute is as stated. With the statute in mind, one readily perceives that the words “or any depressant, stimulant, narcotic drug” are modifiers of “any other controlled substance.” thus, the depressant, stimulant or narcotic drug must also be a controlled substance for the regulation to apply. Marijuana is a controlled substance. Nicotine and caffeine are not.

        • “the ATF cannot enact regulations that exceed the scope of the authorizing statute.” But they do. And the courts don’t stop them. The only thing that stops them from doing things they can’t do is public outcry, and the fear of politicians losing votes. Look at the M855 ban if you don’t believe it.

        • “Where you are wrong is that the ATF cannot enact regulations that exceed the scope of the authorizing statute.”

          HAHAHAHAHAHAHAHAHA! OMG You think we still live in a Republic don’t you?

          The BATFE has already enacted regulations that exceed the statutue. Watch the video! They’ve created a new legal terms, defined them and attached a felony penalty to them! That’s not “exceeding the scope” that’s writing a new fucking law and the courts have upheld it!

          Look I like Ranger Rick and agree with most of his posts but here he’s dead wrong because he’s assuming that what should be is. It isn’t.

  23. Consulting with my local preferred FFL, they instructed me not to inform them of any use of said item, or they would deny me the sale on the spot. I do not use marijuana at all, but the fact that people are denied based solely upon using a drug that is deemed legal by the state in which the reside is absolute bullshit. Regardless of its federal legality, Amendment 10 rules.

    IF I were a user, and I decided to play the game on a form 4473, I believe my answer to the question involving marijuana would be “no”. Am I user? No. Am I addicted to a controlled substance? No. At the time of filling out that form, both of those answers would be truthful, and therefore not a violation of state, or federal law.

    The question states “are”. That would lead a reasonable person to assume the tense to be “present”. If I smoked a a roach in my car prior to entry of the building (which could be grounds for DUI/DWAI) that would be in the PAST tense regarding the question. The only way they’re going to screw you over, is by having a valid, state-issued card for legal purchase of medicinal weed, not recreational. Recreational weed (in the state in which I reside) requires only a valid driver’s license, and being over the age of 21. (For those of you who are confused, it’s the same process for buying beer/liquor)

    End of rant.

  24. Hell why do people even care what bullshit the courts or laws they enact it’s easier to just do what you want don’t steal or hurt anybody and live your life.

  25. Now we see why Obama betrayed millions who voted for him by abandoning his promise to get marijuana off the illegal list.

  26. The 9th court is legendary for it s extrem anti gun standing
    He is full of commifornians and hawaians

  27. Gee what a surprise, a court opinion confirming firearms prohibitions that apply to illicit substance users hit a nerve in this forum. Anyone else remember this TTAG article from October 2015?

    “Housekeeping: The TTAG Team Creates Marijuana Website” The people who bring you The Truth About Guns have launched a new website dedicated to marijuana news: It’s not a blog. It’s a news aggregator – with a difference. The software contains a proprietary algorithm (thank you, Nick) that automatically personalizes the content you see based on your reading preferences. (Provided you sign in with a Facebook account. If not, the site remains anonymous.) Click on the leaf to see a blurb, then decide whether or not you want to eat some more chocolate chip cookies. I mean, read the full story. Better yet,’s

    But the following link to the original post has since been “wiped” from the TTAG website.

    For the same reason it was bone-headed for a gun blog publisher to go on record as the creator of a pro-cannabis website and assume that most TTAG readers or firearms industry vendors were amused by munchies humor or identify with the stoner lifestyle; it’s mind-numbingly stupid for a stoner to expect and demand a right to own firearms after obtaining a government record documenting their chronic marijuana use, then express shock and dismay when it comes back to bite them in the @$$. What were they smoking?

    I see that (The MJ News Feed – Customized, Curated Content for Lovers of the Green) launched by Robert Farago and “The people who bring you The Truth About Guns” is still up, running, and apparently going strong delivering the latest news to the stoner nation.

  28. who under the sun feels ok with the guy in the next shooting lane high as neptune blasting his Glock with you and your loved one right next ? not I. Federal law trumps state law all day long.

    • “Federal law trumps state law all day long.”


      That may be true in practice for now, but it’s only true until the States assert their rights/laws as supreme.

      The US will experience another internal war on this issue…just a matter of when. The Feds tried to tie a bunch of ‘benefits’ to the States licking their butt, but several States have wised up.

      At some point, the Feds will tell a State or group of States to do something they don’t want to do and there will be rebellion.

  29. It’s funny, we can make a plant extract that is pretty much as close to a magic pill for health that Western society has ever seen yet a majority of the population doesn’t know about it because of the 90 years of disinformation that has been spread on the topic. I guess all I can say is, if you ever get sick just look up Rick Simpson Oil, and if you don’t want to take a hemp supplement because “you don’t get high” then just shove the weed up your ass (take it via suppository).

  30. There is no difference between drugs, alcohol, and tobacco. All the drug laws are pure BS.
    This is a gun grabber plot.

    • And a fine one, I might add.

      Imagination my dear chap; imagination. We are so far ahead in ability to keep pressing and pressing. Gun sense people attack in all directions simultaneously. Pro-gun people are always reacting, always defending, always behind the curve. In the end, the defending Spartans at Thermopylae lost to the attacking Persians (trickery is a valid tactic in war).

  31. IDK what people expect. Pot is illegal under federal law, the AG’s unwillingness to prosecute notwithstanding. You may agree that the federal ban on pot is illegal, unconstitutional, violates states rights, is federal overreach, and/or wrongheaded. I agree with some or all of those points.

    Nevertheless, federal law expressly prohibits it, and until that time the 9th circuit is just taking the plain meaning of the law. Whatever the state says about pot, you are an unlawful user under federal law. No guns for you, sorry. Banks won’t touch state-legal pot dealers either by the way, for the same reason. The AG winks at it, but it is still illegal and banks could be prosecuted under money laundering laws.

    This is not a gun rights issue, it’s a “too many things are illegal” issue. But until the Feds decriminalize pot, you will remain an unlawful user no matter what your particular state says.

    • I think the larger question is why are you so willing to let the Feds hand down edicts to govern behaviors when those edicts clearly contradict the States?

      What mindset allows for the “Feds” to be the final arbiter of everything?

      And, where does that get us, really? The Feds don’t even enforce their own laws (cf Hillary email server) except when they want to. Yes, that can happen at the State (or County) level, too.

      The issue becomes one of ‘centralization.’ Is it really in our better interest to acquiesce to complete, centralized authority on all matters?

      • Lots of laws I disagree with and don’t like. Still gotta follow the law. The controlled substances act classifies pot as a schedule I drug, and it is totally constitutional, unfortunately.

        Elections have consequences. vote differently.

        • What happens when voting doesn’t matter?

          Interesting (and scary) point to ponder: Is it the role of a Representative government to legislate bureaucratically selected “morality” over the will of the people represented?

          The very best one can hope for when the .gov begins to act outside the ‘will of the people’ is pressure.

          There are many immoral laws on the books. So, at what point do you concede that voting and the courts and other “government sanctioned” solutions are no longer capable of helping?

          Will there EVER come a time that you would choose to violate a law on it’s immoral basis, or is it ALWAYS ‘always obey the law no matter what?’

        • The flaw in your argument is that it is not at all clear yet that people would vote to remove pot from the controlled substances act in 2016. People wanted pot on the CSA in 1968. They certainly would *not* have voted to remove it in 1980, or 1990, or 2000.

          Barely a few states have had referendums on it. Ask again, and make this argument, after we have seen referendums in over 30 states, including large populous ones.

          There is a huge difference between “voting does not matter” and “voting matters but I cannot convince people to agree with me.” The vast majority of the time, the laws on the books are the result of the latter.

        • “The flaw in your argument is that it is not at all clear yet that people would vote to remove pot from the controlled substances act in 2016.”

          No flaw in my argument at all because I was not addressing legalization of marijuana. At all.

          You deflected and did not answer my question. You argued ‘the law is the law and we should obey’ and I asked a philosophical question: is that ALWAYS true? What about when the gov begins acting outside the true, moral ‘good of the people?’

          So, what is it: do you believe an absolutist stance that ALL laws MUST be obeyed at ALL times, just because they are ‘laws’ or not?

          One thing to remember in this type of discussion is that laws are NOT the underpinning of ‘right and wrong.’ Values are. Laws reflect values. So, here are a few possibilities:

          (1) Society values pot being illegal, and the laws reflect that.

          (2) Society values the government telling them what to think (acquiescence to Statism), so .gov makes/keeps pot illegal because it can.

          (3) Society does not care about pot one way or another, gov does what it wants.

          It does not matter which of those is true regarding mj at this point in time. The question is what is YOUR stance of ‘obey the law’ when situation (3) exists…as it does now regarding firearms in a number of places, for example.

  32. I smoke pot.
    I am self employed in the IT world.
    I make on average 12k a month.
    I am 60 years old.
    I own a large house.
    I own a lot of guns.
    I am a Veteran of the US Navy.
    I’ve smoked pot for 43 years.
    I prefer pot over booze.

  33. so she got the card as a political statement and has never smoked pot, yet it’s okay to revoke her 2A rights? the court managed to trample both 1A and 2A in one shoddy opinion. well done.

  34. “addicted to pot,” hilarious, I know people that have been smoking pot every day for 30 years and they’re not addicted.

  35. So many people commenting here saying “it’s how the laws are written, so shut up.” A bad law should always be criticized and relentlessly.

    • Yes, yes. This !

      Criticize relentlessly. Keeps you occupied while we gun sense people introduce reasonableness into the nonsense of unfettered gun possession.

  36. “11.e “Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?””

    If the substance is given to you legally answer no, you are not an unlawful user. This must be the legal challenge. Forget the controlled substance phrase.

  37. Wouldn’t take too much in the way of legal contortions to stretch this to include
    people who imbibe alcohol. And we have seen the Ninth Circus Court jump through
    some amazingly contorted hoops in the past.

  38. Can you get a gun if you have Disability like blood pressure And you are blood pressure medicine from the doctor do that count as a control substance can I still get a gun

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