Guns, weed and the feds
Thursday, Jan 23, 2014 - Posted by Rich Miller
* Christian County Sheriff Bruce Kettelkamp responded to the new state rules forcing medical marijuana patients would have to surrender their FOID cards and concealed carry permits by saying carrying a concealed firearm after smoking medical marijuana is OK by him. He just doesn’t want people driving high…
“I just don’t think anyone should have their second amendment rights taken away from them because they’re on a prescription for a pain killer,” said Kettelkamp.
Kettelkamp is more worried about the people with driver’s licenses and medical marijuana cards, because he doesn’t feel there is an accurate way of testing drivers to see if they’re under the influence of marijuana.
“I don’t have many murders in Christian County,” said Kettelkamp. “But I have people killed in accidents, and that’s what really concerns me about somebody driving under the influence of marijuana. We’re not going to be able to detect that. There’s no way we can do a field sobriety test on an individual that’s under the influence of marijuana.”
Welcome to Downstate.
The proposed rules, by the way, are here.
* WICS TV also asked the Illinois State Police for an explanation of the FOID/carry ban for med-mar patients…
According to a statement from the agency, “possession of both a registry identification card and a FOID card is contrary to federal law.”
It should be noted that possessing marijuana, even while following all the rules of the new Illinois program, is also not allowed under federal law.
OK, I get that. You can’t do it under federal law. However, federal law also has some big penalties for growing, selling and smoking marijuana, whether medicinal or not, and Illinois has moved beyond that silliness.
* A federal suit over this issue was filed in 2011 after the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) issued a memo to all federal firearms dealers warning of severe consequences…
The memo says that “there are no exceptions in federal law for marijuana purportedly used for medicinal purposes, even if such use is sanctioned by State law…any person who uses…regardless of whether his or her state has passed legislation authorizing marijuana for medicinal purposes, is an unlawful user…and is prohibited by Federal law from possessing firearms of ammunition…..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…may not transfer firearms or ammunition to the person.” And indeed, Hauseur did not.
Wilson thinks that this BATFE policy violates her Second Amendment rights. With the help of Nevada lawyer Chaz Rainey of Rainey Devine, she filed suit in October in federal district court in Nevada against Department of Justice chief Eric Holder, the BATFE, and its acting director and assistant director.
As the suit says, “Ms. Wilson has never been charged with or convicted of any drug-related offense, or any criminal offense….Indeed, no evidence exists that Ms. Wilson has ever been ‘an unlawful user of, or addicted to, marijuana….’ Ms. Wilson maintains that she is not an unlawful user of or addiction to marijuana….Nonetheless, Ms. Wilson was denied her Second Amendment right to keep and bear arms based solely on her possession of a valid State of Nevada medical marijuana registry card.” The suit argues the BATFE policy also violated her Fifth Amendment right to due process since it presumes she is a prohibited drug user arbitrarily.
- Demoralized - Thursday, Jan 23, 14 @ 9:46 am:
Legal under state law and illegal under federal law. It will be interesting to see what the federal courts say about this one.
- Carl Nyberg - Thursday, Jan 23, 14 @ 9:48 am:
If there isn’t a policy for removing firearms from people convicted of being stupid with alcohol…
If there isn’t a policy for removing firearms from people on other prescription drugs…
If you want to nix the right to possess firearms from people based on indicators grounded in *research*, make a proposal.
But singling out marijuana is BS.
- dupage dan - Thursday, Jan 23, 14 @ 9:53 am:
Demoralized, first, the feds have to arrest someone. Other than some pot stores out west a few years back, I haven’t seen much effort on the part of the DEA to crack down on the activities in CA, WA or CO. It’s not as tho the stores are hiding. It’s not as tho the growers are hiding, or the users. Just a lot of chest thumping and doomsday letter writing. Until someone gets busted, the whole thing just seems like a bizarre wide-awake dream.
- Just Observing - Thursday, Jan 23, 14 @ 10:01 am:
What a ridiculous federal policy.
- Anon - Thursday, Jan 23, 14 @ 10:11 am:
Why can’t the Feds do like we do in Illinois and just have some laws that aren’t enforced? Or at least are selectively enforced, depending on the circumstances?
- Javorica - Thursday, Jan 23, 14 @ 10:15 am:
Legal or not on the state level, Marijuana is still considered a CB-1 receptor agonist, which in plain speak can cause mild hallucinations. That doesn’t scream being of sound mind… Shouldn’t that be a basic prerequisite of carrying a weapon? Isn’t this why we don’t allow carrying in establishments which 51% or more of it’s revenue are generated by alcohol sales?
- Upon Further Review - Thursday, Jan 23, 14 @ 10:18 am:
Cheech and Chong open a pistol range and gun emporium in their new comedy “Reefer Madness: Armed and Dangerous” filmed on location in Illinois. What possibly could go wrong? Snark.
- John Boch - Thursday, Jan 23, 14 @ 10:19 am:
This is just arbitrary and in my opinion capricious, citing the federal/state conflict and I’ll tell you why:
Illinois law has a provision whereby a felon can petition the Illinois State Police for restoration of their firearm rights after twenty years has passed since their felonious sentence has been successfully served.
I know several individuals who picked up felonies in their youth who now have FOID cards as now-reformed felons and I strongly support this. At least three of them have had (since may have expired) concealed carry permits from other states.
Now, federal law specifically prohibits felons from possessing firearms and ammunition, but Illinois State Police grant reformed felons FOID cards with some regularity (including a guy who had two armed robberies as a misguided youth).
So why this arbitrary pronouncement? Sounds as though someone just wants to be difficult. But it’s about guns, so why not, right?
John
- Sandy Champion - Thursday, Jan 23, 14 @ 10:22 am:
Possession and use is key wording. What if we legally possess only to legally give to someone else to legally use?
Hmmm….
- Capo - Thursday, Jan 23, 14 @ 10:28 am:
The state police as an agency were adamantly opposed legalized marijuana. It really shouldn’t surprise anyone of their stance in this matter. Although, I don’t agree with the decision I fully expected the state police would take a hardline stance.
- Hit or Miss - Thursday, Jan 23, 14 @ 10:29 am:
“he doesn’t feel there is an accurate way of testing drivers to see if they’re under the influence of marijuana.”
From point of view of law enforcement the lack of a good test of the influence of marijuana is important. From the point of view of the public the impaired judgment of a high person and resulting impact on others is the important factor.
“He just doesn’t want people driving high”
I think that people who are high on marijuana and might have impaired judgment while operating a car or truck pose a risk to the general public. Likewise they can be just as impaired in their judgment when it comes to using a gun.
I wonder what the advantage to the public is to have a person with reduced cognitive abilities, and thus impaired judgment, to have a gun on the street is?
- Joan P. - Thursday, Jan 23, 14 @ 10:37 am:
“he doesn’t feel there is an accurate way of testing drivers to see if they’re under the influence of marijuana.”
It is illegal in Illinois to drive with ANY level of marijuana in one’s system. Cops can and do have blood tests performed if they have reason to believe that someone has used drugs. It is not necessary to convict someone of DUI-drugs that the prosecution show that the driver was impaired.
Wonderful to see a Sheriff who doesn’t know that.
- Downstate GOP voter - Thursday, Jan 23, 14 @ 10:40 am:
“Or at least are selectively enforced, depending on the circumstances?”
Any hint of ’selective enforcement’ raises in my mind many questions. For example, what about the concept of ‘equal protection under the law’? Last time I looked at the top of the county courthouse I saw a statue of Lady Justice. As long as I can remember, Lady Justice has been wearing a blindfold to symbolize fairness.
- Todd - Thursday, Jan 23, 14 @ 10:42 am:
http://www.oregonlive.com/news/index.ssf/2011/05/oregon_supreme_court_sends_mes.html
From the article:
Specifically, the high court said Washington County Sheriff Rob Gordon and Jackson County Sheriff Michael Winters were wrong to deny concealed handgun permits to four law-abiding medical pot users on the basis that doing so would violate the federal Gun Control Act. The act states that “an unlawful user … of any controlled substance” can’t own a gun. The sheriff’s argued that the federal act trumps Oregon’s 13-year-old medical marijuana law, which unlike federal law legalizes pot possession for patients with qualifying ailments and a doctor’s approval.. . .
and it looks like the SCOTUS denied a cert petition on the issue. I think ISP is on shaky grounds here.
http://www.opb.org/news/article/us-high-court-declines-oregon-pistol-pot-case/
form the Oregon Supreme Court:
“It follows from that “anti-commandeering” principle that Congress lacks authority to require the states to use their gun licensing mechanisms to advance a particular federal purpose. If Congress lacks the constitutional authority to commandeer the state gun licensing statutes in that fashion, then we can hardly imply an intent to commandeer state gun licensing laws from a federal statute that does not even mention them. Congress did not directly require the states to use their gun licensing mechanisms for the purpose of keeping guns out of the hands of marijuana users, and we conclude that Congress did not intend to achieve that same result by making it illegal for medical marijuana users to possess guns. The state’s decision not to use its gun licensing mechanism as a means of enforcing federal law does not pose an obstacle to the enforcement of that law. Federal officials can effectively enforce the federal prohibition on gun possession by marijuana users by arresting and turning over for prosecution those who violate it.
Ultimately, then, we reject the sheriffs’ contention that, to the extent that ORS 166.291 requires county sheriffs to issue CHLs to qualified applicants without regard to their use of medical marijuana, the statute is preempted by the federal prohibition on gun possession by marijuana users at 18 USC section 922(g)(3). The sheriffs cannot justify their denial of the applications at issue on that ground.”
Decision here:
http://law.justia.com/cases/oregon/supreme-court/2011/s058645.html
- Ghost - Thursday, Jan 23, 14 @ 10:44 am:
Mr. Kettlecamp, just use the test you apply to people driving under the influence of oxy, codeine, vallium etc etc
- Ghost - Thursday, Jan 23, 14 @ 10:46 am:
I wonder if somone is actually trying to provoke a suit like the one filled to get a court ruling to dispose of this issue. Given the lack of enforcement it almost seems like somone is being a bit crazy like a fox here trying to get scotus to put this to rest one way or the other.
- Empty Suit - Thursday, Jan 23, 14 @ 10:59 am:
Sorry I don’t want anyone under the influence of anything anywhere near me with a gun.
- wordslinger - Thursday, Jan 23, 14 @ 11:03 am:
–Other than some pot stores out west a few years back, I haven’t seen much effort on the part of the DEA to crack down on the activities in CA, WA or CO.–
Are you kidding? Federal marijuana seizure money is a cash-cow for local law enforcement agencies.
Under federal asset forfeiture laws, they can take you weed, your cars and your house before you ever stand before a judge.
http://www.eastbayexpress.com/LegalizationNation/archives/2012/08/07/federal-asset-seizures-marijuana-eradication-funds-hit-historic-levels
- Ghost - Thursday, Jan 23, 14 @ 11:42 am:
I wonder if you can use a 3d printer to make a gun out of marijuana based material…. kill two birds with one stone…. puns intended
- Leave a Light on George - Thursday, Jan 23, 14 @ 11:43 am:
Ghost is correct, =Mr. Kettlecamp, just use the test you apply to people driving under the influence of oxy, codeine, vallium etc etc=
Just because a drug is prescribed by your doctor doesn’t mean you can drive under it’s influence if it affects your judgement/ability to drive safely.
- Demoralized - Thursday, Jan 23, 14 @ 11:44 am:
Legalize marijunana, tax it, and be done with it.
- Ghost - Thursday, Jan 23, 14 @ 11:51 am:
Leave a light… not sure what was incorrect. Keetlecamp was complaining that with marijuanna he had no test to determine if they were under the influence. I proposed he use the same test he would for any drug that may render one under the influence… from there not sure where you percieved that i was claiming you can drive under the influence, I wasnt.
- danlinn - Thursday, Jan 23, 14 @ 11:51 am:
=====The state police as an agency were adamantly opposed legalized marijuana=======
ISP went neutral on medical cannabis in IL in 2010.
========Are you kidding? Federal marijuana seizure money is a cash-cow for local law enforcement agencies. ==========
Exactly correct, asset seizures and forfeitures are seldom discussed but play a huge role in law enforcement agencies’ budgets. This leads to a financial incentive for these agencies to go after drug crimes and not solve violent crimes, furthermore the asset forfeiture cases don’t require a conviction since the person must prove they acquired the possessions legally in civil court where the burden of proof is on the individual and not the state.
=====There’s no way we can do a field sobriety test on an individual that’s under the influence of marijuana.======
There are Drug Recognition Experts (DREs) that are trained to recognize cannabis impairment in drivers, the problem is the IL only has 35 of them according to one ISP officer we have worked with when drafting the mmj legislation over the years. Plus, the Standardized Field Sobriety Tests (SFST) is capable of detecting impairment in drivers, whereas IL DUID for cannabis simply tests for the presence of any THC metabolites in the body, and THC and other cannabinoids stay in the fat cells of the body long after impairment. Thus any of the CapFax readership who are going to CO to partake in the herb will be guilty of DUID in IL for a week or so after returning to IL.
- Leave a Light on George - Thursday, Jan 23, 14 @ 12:02 pm:
Ghost I said you were correct. Perhaps we should ask you to perform some field sobriety tests before typing. LOL
- Formerly Known As... - Thursday, Jan 23, 14 @ 12:10 pm:
The good sheriff reflects my points made in yesterday’s post very well. Though I remain undecided on med-mar, chalk one up for common sense.
To add: @Javorica makes a good point.
The state has determined this is a “medicine”. If it truly is a medicine, then there is no grounds for
- creating a database of people using the medicine
- banning those people from exercising a Constitutional right simply because they use that medicine
If the concern is over marijuana impairing judgment while holding a gun license, then we’d better ban all the alcohol tipplers as well as anyone taking anything stronger than an Advil.
- Formerly Known As... - Thursday, Jan 23, 14 @ 12:14 pm:
=== responded to the new state rules forcing medical marijuana patients would have to surrender their FOID cards ===
The hypocrisy and contradictions are the parts that really get me here.
On one hand, the state says: “We don’t need no stinkin’ federal rules.” Marijuana? It’s a medicine. The feds can go fly a kite.
On the other hand, the state says: “We must follow the federal rules.” Marijuana? No, no, no. That is a dangerous narcotic, not a medicine.
The state is causing this problem by a lack of consistency. Either stand by your decision, or roll it back.
Otherwise, the state is creating as many problems as it is solving.
- DuPage - Thursday, Jan 23, 14 @ 12:26 pm:
@10:40AM=what about the concept of equal protection under the law?=Everybody has equal protection under the law, it’s just some are more equal then others. If you want some extra equality,(and have lots of money) hire good lawyers.
- I'm Strapped - Thursday, Jan 23, 14 @ 12:42 pm:
I don’t do marijuana but I do like the 10th Amendment, especially when the Fed has a law/s they won’t enforce.
As an aside, I was informed by a USC Professor in 1984 that one day tobacco would be illegal and marijuana would be legal. It may be coming?
- Hunter Harry - Thursday, Jan 23, 14 @ 12:45 pm:
How about this as an alternative option to
“- creating a database of people using the medicine
- banning those people from exercising a Constitutional right simply because they use that medicine”
One might
1 - create no new database of marijuana prescriptions.
2 - have the seller of medical marijuana check the existing FOID database and the existing (or soon to exist?) canceled carry database and reject any prescription for marijuana if a match is found in either the FOID or CC databases.
This alternative would not impact on the Constitutional rights of a single gun owner only their state granted privilege to buy marijuana.
- Ahoy! - Thursday, Jan 23, 14 @ 1:20 pm:
Is there a reason to treat medical marijuana any different than drugs like Oxycodone? Do we take FOID cards away from people taking really strong pain medicines?
Do we have a way to test people driving under strong medicines that could alter brain function like Benadryl?
- Dirty Red - Thursday, Jan 23, 14 @ 2:19 pm:
“If you don’t shut up, I will shoot you.” - No one on Marijuana…ever.
That is unless the subject of said statement is standing down range with an apple on his or her head.
- Ghost - Thursday, Jan 23, 14 @ 3:46 pm:
Leave i want my counsel present before i respond
- downstater - Thursday, Jan 23, 14 @ 4:07 pm:
A gun owner doesn’t have to take a prescription for marijuana. There are other medicines and it is a choice to be made.
As long as recreational marijuana remains illegal this will be an issue. Alcohol is a legal substance so the comparison doesn’t really hold.
- Just The Way It Is One - Thursday, Jan 23, 14 @ 5:07 pm:
Excellent and prudent statement by the Sheriff (I worry about that stuff, too), although that lawsuit re. the BATFE Memo sure does gum up the works until it can get resolved apparently…!
- Anthony - Friday, Jan 24, 14 @ 9:21 am:
The Feds have nothing to do with the issuance of a FOID, concealed carry, or medical marijuana card there all issued by the state.
- John - Tuesday, Jan 28, 14 @ 10:20 pm:
The Christian County Sheriff has nothing to say about it. He cannot and will not go up against the feds re. drug laws, and the IL State Police issue FOID cards and concealed carry licenses. The conceal carry privacy waiver in Phelps HB183 is where the real problems come in:
“a waiver of the applicant’s privacy and confidentiality rights and privileges under ALL federal and state laws, including those limiting access to juvenile court, criminal justice, psychological, or psychiatric records or records relating to any institutionalization of the applicant,…” Thank you Rep. Phelps and NRA lobbyist Todd Vandermyde!
Every federal form 4473 to buy a new gun from a dealer asks about drug use. Lie on that form, and it’s a federal crime. With the privacy waiver, State Police can search for records of every gun bought by a citizen going back forever, then share the info. with ATF, since their is no time limit on the waiver once signed.
Like Duty to Inform, the unlimited privacy waiver will keep NRA busy for many years “fixing” their bill.