Pubdate: Sun, 11 Dec 2011
Source: Pipe Dream (NY Edu)
Copyright: 2011sPipe Dream
Author: Justin Kalin, Columnist


On Sept. 21, the Bureau of Alcohol, Tobacco, Firearms and Explosives
(ATF) responded to confusion in the federal firearms licensing
community about whether medical marijuana patients can apply for gun

Its letter refers to the Gun Control Act of 1968 and the Controlled
Substances Act of 1970. An unlawful user or addict to controlled
substances is prohibited from purchasing firearms or ammunition.
Furthermore, presenting a medical marijuana card is "reasonable cause
to believe" that the transferee is an unlawful user or addict.

According to Steve Fox of the Marijuana Policy Project, one court held
the definition of unlawful use to mean constant use over an extended
period of time. The possession of a medical marijuana card alone does
not legally fulfill this definition.

On Oct. 18, the ATF was sued for discrimination against law-abiding
citizens from prohibiting the exercise of the Second Amendment and due
process clause of the Fifth Amendment in accordance with state law.
Three years earlier, an Oregon resident was denied renewal of her
concealed weapon permit for being a registered medical marijuana
patient. Her case is ongoing.

These are citizens who have never been charged with a criminal or
drug-related offense, who have neither been found illegally using nor
addicted to marijuana.

Just to clarify, marijuana has been shown to decrease aggression and
violent behavior.

Even so, the ATF should not be held accountable for interpreting
federal statutes, or for making exceptions outside their jurisdiction.
The mission statement of the Department of Justice is clearly meant to
enforce the law and protect its interests.

The Federal Firearms License under the Gun Control Act has sanctioning
authority in the sale of both intrastate and interstate commerce.
However, the exclusive powers traditionally reserved to the states
include licensing, such as for hunting. The medical marijuana card is
effectively a license, as observed through state regulation and
oversight. The Tenth Amendment should be raised.

Marijuana is currently listed as a Schedule I drug, meaning it has a
high potential for abuse and no currently accepted use in medical
treatment. Somehow, the accessibility of medical marijuana to nearly
100 million Americans, 16 states and the District of Columbia has done
nothing to convince the Drug Enforcement Administration, which has
refused to reschedule marijuana for the past two decades.

Addiction as it relates to medical marijuana should be deemed a
contradiction in terms. Quite frankly, the difference between habitual
medical and recreational use of marijuana is just like the difference
between proper use and abuse of other prescription drugs.

Marijuana is the most widely used illicit drug in the United States,
but not because of its potential for abuse. Physiological dependence
in marijuana is already minor, and there is no such thing as narcotic
addiction when a drug is used for pain relief, no matter how much or
how often it is being administered. If a patient follows the
supervision of his or her physician, there is no reason to believe
addiction will ensue.

The ATF directs applicants to answer "yes" if they are unlawfully
using or addicted to marijuana, but does not necessarily expect
applicants to answer truthfully. The Bureau is not in a position to
cross-reference applications with state lists of medical marijuana
users. But patients should not have to commit perjury in order to
exercise their rights.

For those who intend to answer truthfully, it seems unlikely the law
will rule in their favor. Memos from the Department of Justice in 2009
and 2011 have set priorities on large-scale operations and ask federal
prosecutors to limit their attention on the seriously ill. However,
federal prosecution does not offer immunity to anyone breaking
existing law, including state-sanctioned medical marijuana patients,
especially where firearms are concerned. 
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