Pubdate: Sun, 22 May 2011
Source: Albany Democrat-Herald (OR)
Copyright: 2011 Lee Enterprises
Contact: http://drugsense.org/url/HPOp5PfB
Website: http://www.democratherald.com/
Details: http://www.mapinc.org/media/7
Bookmark: http://www.mapinc.org/mmj.htm (Cannabis - Medicinal)

PISTOLS AND POT: WHAT WE LEARN FROM THE COURT

You can learn a lot from the opinion of the Oregon Supreme Court in 
the case it decided Thursday concerning concealed handgun licenses.

The court agreed with trial courts in Jackson and Washington 
counties, and with the Oregon Court of Appeals, that Oregon sheriffs 
must not refuse to issue CHLs to people who also hold medical marijuana cards.

One thing you are reminded of -- in a footnote unrelated to the main 
arguments of the case -- is that under the state constitution, 
"individuals in Oregon have the right to possess firearms for defense 
of self and property." It also says that except for some persons 
including minors and felons, people do not violate the law "by 
carrying a firearm openly in a belt holster."

The main thing you learn, though, is that there's a clear distinction 
between the issuance or possession of a concealed-carry license and 
the possession of an actual firearm.

This is a point at the heart of the debate about House Bill 2787, 
which now appears dead in the state Senate. The bill would bar public 
bodies from disclosing the names of CHL holders or applicants.

Opponents of the bill have argued that people may need to know, and 
should have the right to find out, whether someone they are concerned 
about has a gun, and therefore they should have access to CHL information.

But that argument misses the essential point, which is that having a 
license does not mean somebody is armed or even has a gun, or that 
somebody who has a gun also has a license to carry it concealed on 
his person or in his vehicle.

That essential point is at the heart of the court decision last week.

The sheriffs in Jackson and Washington counties refused to issue or 
renew concealed-carry licenses to medical pot users on the grounds of 
federal law.

The federal Gun Control Act, the state courts observed, "makes it a 
federal crime for a person who uses marijuana in violation of federal 
law to possess a firearm in or affecting commerce."

The U.S. Supreme Court has interpreted that section to mean that 
Congress wanted to keep firearms away from persons whom Congress 
"classified as potentially irresponsible and dangerous."

The Oregon courts considered whether this conflicts with issuing a 
concealed-carry license to people who use marijuana, and they say it does not.

"In fact," Supreme Court Justice Paul De Muniz wrote, "it is possible 
that the sheriffs in this case could themselves enforce ...the 
federal Gun Control Act against medical marijuana users who possess 
guns in violation of federal law. The federal act makes such 
possession illegal, the sheriffs generally are authorized to enforce 
federal as well as state law, and no state law prohibits the sheriffs 
from taking such enforcement actions."

But, the court said, the sheriffs cannot use the state CHL licensing 
law to try to carry out the federal prohibition.

In other words, they can under federal law arrest marijuana users who 
possess guns, but they can't under state law refuse to issue them 
licenses to carry guns concealed on the grounds that they use pot.

In the legislative debate about HB2787, the distinction between 
licensing and being armed has been lost. Even though it's probably 
too late now, it might be helpful for senators to read what the court 
had do say. (hh)
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MAP posted-by: Jay Bergstrom