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Thread: From Eugene Volokh: Guns + Medical Marijuana (Oregon)

  1. #1
    Regular Member Repeater's Avatar
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    From Willis v. Winters, decided today by that wild and crazy Oregon Court of Appeals:
    Respondent, the Jackson County Sheriff, appeals a judgment of the circuit court that ordered him to renew a concealed handgun license issued to petitioner, a medical marijuana user. The sheriff concedes that petitioner met the requirements for issuance of a concealed handgun license set forth in ORS 166.291. He nevertheless asserts that Oregon’s concealed handgun licensing statutes are preempted by federal law in this instance, because “an unlawful user * * * of any controlled substance” cannot lawfully possess a firearm under 18 USC section 922(g) of the federal Gun Control Act. The circuit court rejected the sheriff’s preemption argument and ordered him to issue a renewal of petitioner’s concealed handgun license. We agree with the circuit court’s conclusion that federal law does not preempt this state’s concealed handgun licensing statutes, and we therefore affirm....

    The linchpin of the sheriff’s preemption argument is that Oregon’s concealed handgun licensing statutes authorize a licensee to possess a concealed handgun. That is an oversimplified–and incorrect–characterization of the right to bear arms in general, and of the effect of the concealed handgun licensing statutes in particular. The right to possess a handgun does not flow from Oregon’s concealed handgun licensing statutes; the right to carry a firearm is constitutional in origin. Or Const, Art I, § 27 (“The people shall have the right to bear arms for the defence of themselves, and the State, but the Military shall be kept in strict subordination to the civilpower[.]”)....

    [T]he circuit court correctly concluded that Oregon’s concealed handgun licensing statutes are not preempted by the federal Gun Control Act. The concealed handgun licensing statutes do not affirmatively authorize controlled substance users to possess handguns; rather, they exempt a licensee from state criminal liability for the possession of a concealed handgun.

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    Good. Maybe this will be the begining of the end for America's current Prohibition tomfoolery.



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    Regular Member simmonsjoe's Avatar
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    Federal law is totally irrelevant anyways.

    He is the SHERIFF. The only time this law should ever come into play in a decision he makes, is to stop a Federal Officer for attempting to charge this man under federal law, for something that is legal and protected by oregon's state constitution.

    This sheriff should be voted out immediately. He doesn't even understand who he works for. His duty is to the Oregon Constitution, not the federal gov't.
    He is legally and morally obligated to protect those rights in the Oregon Constitution, as defined by state law, EVEN IF IT VIOLATES FEDERAL LAW (as long as it doesn't violate an incorporated right)

    gray text was redacted after reading next post.
    illegal ≠ immoral legal ≠ moral
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    Regular Member We-the-People's Avatar
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    Okay folks, this is MY Sheriff (no I don't work for him...LOL).

    All in all he's pretty good for gun owners and carriers. I've been carrying openly for over a year, daily, and not a single problem anywhere in the county. To be fair, no problem in the adjoining county either.

    This is the Sheriff who went to court to keep form disclosing as "public records" all of the Concealed Handgun License holders applications and personal information which was demanded under "public records request" by a local newspaper (and then joined on by a bunch of anti papers). He, just his week, lost that in the Oregon Court of Appeals (we're hoping he takes it to the State Supreme Court and that they will agree to hear it).

    This month he stated on the local radio show where he was a guest "open carry is legal" in response to a CCer who called in to ask about if his weapon becaume visible accidentally while out in public (like bending over to pick something up). He VOLUNTEERED that "open carry is legal".

    On the POSSIBLY bad side is this marijuana case. There are some here who thin he KNEW what the outcome would be and did it to get it "on the record and on the books" as a legal precedent in the state. We have a very liberal and anti-gun bunch in the northern part of the state and there is theorizing that this was a move to shut down their cries about 'drug users with concealed permits". I can't say that's the case but there is discussion locally that it may well be.

    UNFORTUNATELY, his department was also invovled in the "David Pyles incident" in which the local police department, the Sheriffs department, and the Oregon State Police were all involved. The local PD was the "instigating agency" and I suspect that the SO unit was simply there to assist. Anyway, without a warrant the PD "didn't arrest" him but instead hauled him in on a "Psych eval" which does not give you your 5th ammendment rights to remain silent (don't talk to the shrink, stay in the nut house). His crime? He purchased some firearms, through a licensed dealer, with the tax return he got while he was on administrative leave from his state job (due to a supervisor who didn't like him filing union grievances).

    Unfortunately the supervisor knew how to play his game and put all the right check marks in all the blocks to be able to convince the PD he was possibly hazardous to himself and/or others. It's a major stink around here.

    So Sheriff Winters department isn't perfect, I'm sure the Sheriff was probably a BIT pissed to hear how they'd gotten involved in the David Pyles incident, but overall I think we're pretty lucky to have him.
    "The Second Amendment speaks nothing to an unfettered Right". (Post # 100)
    "Restrictions are not infringements. Bans are infringements.--if it reaches beyond Reasonable bans". (Post # 103)
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    Regular Member simmonsjoe's Avatar
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    We-the-People wrote:
    Okay folks, this is MY Sheriff (no I don't work for him...LOL).

    All in all he's pretty good for gun owners and carriers. I've been carrying openly for over a year, daily, and not a single problem anywhere in the county. To be fair, no problem in the adjoining county either.

    This is the Sheriff who went to court to keep form disclosing as "public records" all of the Concealed Handgun License holders applications and personal information which was demanded under "public records request" by a local newspaper (and then joined on by a bunch of anti papers). He, just his week, lost that in the Oregon Court of Appeals (we're hoping he takes it to the State Supreme Court and that they will agree to hear it).

    This month he stated on the local radio show where he was a guest "open carry is legal" in response to a CCer who called in to ask about if his weapon becaume visible accidentally while out in public (like bending over to pick something up). He VOLUNTEERED that "open carry is legal".

    On the POSSIBLY bad side is this marijuana case. There are some here who thin he KNEW what the outcome would be and did it to get it "on the record and on the books" as a legal precedent in the state. We have a very liberal and anti-gun bunch in the northern part of the state and there is theorizing that this was a move to shut down their cries about 'drug users with concealed permits". I can't say that's the case but there is discussion locally that it may well be.

    UNFORTUNATELY, his department was also invovled in the "David Pyles incident" in which the local police department, the Sheriffs department, and the Oregon State Police were all involved. The local PD was the "instigating agency" and I suspect that the SO unit was simply there to assist. Anyway, without a warrant the PD "didn't arrest" him but instead hauled him in on a "Psych eval" which does not give you your 5th ammendment rights to remain silent (don't talk to the shrink, stay in the nut house). His crime? He purchased some firearms, through a licensed dealer, with the tax return he got while he was on administrative leave from his state job (due to a supervisor who didn't like him filing union grievances).

    Unfortunately the supervisor knew how to play his game and put all the right check marks in all the blocks to be able to convince the PD he was possibly hazardous to himself and/or others. It's a major stink around here.

    So Sheriff Winters department isn't perfect, I'm sure the Sheriff was probably a BIT pissed to hear how they'd gotten involved in the David Pyles incident, but overall I think we're pretty lucky to have him.
    That is an interesting thought. I'd like to hear the Sheriff's opinion on that case.

    Yea that was a bad incident. What is the latest news on it?
    illegal ≠ immoral legal ≠ moral
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    While I view marijuana in much the same way as I do excessive drinking and more serious drug use, particularly with regard to operating machinery,vehicles or guns, it also seems clear that we allow alcoholics to have guns so we cannot deny the right to those legitimately prescribed for its use.

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    But wasn't the defendant an "alledged" maryjane user?
    I never heard of him being 'convicted' of anything in the reports I read.
    If the feds convicted him of drug charges they might have a leg to stand on
    if he ever left the state, or purchased a gun from another state.

    But if the sheriff threw the case to have case law on gun rights side,
    vote him back in.

    Can they ship magic brownies over state lines?


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    ecocks wrote:
    While I view marijuana in much the same way as I do excessive drinking and more serious drug use, particularly with regard to operating machinery,vehicles or guns, it also seems clear that we allow alcoholics to have guns so we cannot deny the right to those legitimately prescribed for its use.
    That reminded me of an interesting case:

    http://www.getmadd.com/DontDrinkatHome.htm


  9. #9
    Regular Member We-the-People's Avatar
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    Well after reading that article I will be printing it out and taking it with me whenever I go to see the VA doctor. They ALWAYS ask about dru and alcohol use. If you say you drink at all they then start asking questions to find out how much you drink (I'm sure they do the same for drug use but I don't do them so haven't gone through that).

    Now....I'll just hand then the printout and say "no comment at all".

    It's no different that trying to take law abiding citizens guns because criminals violate the law and use guns to commit crimes.

    "The Second Amendment speaks nothing to an unfettered Right". (Post # 100)
    "Restrictions are not infringements. Bans are infringements.--if it reaches beyond Reasonable bans". (Post # 103)
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    Repeater wrote:
    [T]he circuit court correctly concluded that Oregon’s concealed handgun licensing statutes are not preempted by the federal Gun Control Act. The concealed handgun licensing statutes do not affirmatively authorize controlled substance users to possess handguns; rather, they exempt a licensee from state criminal liability for the possession of a concealed handgun.
    Interesting. So what the court effectively ruled is that while a person may be prohibited under federal law from even possessing a gun, the State permit to carry a concealed gun does not consider such issues. Thus, a person could be prohibited from having a gun under federal law, but not be in violation of State statute for having a concealed gun.

    I'm of the firm opinion that anyone who really can't be trusted to exercise his 2nd amendment rights, should not be walking the streets unsupervised; he should be in jail on criminal convictions or confined to a mental hospital on legit safety concerns. Put in the positive perspective, anyone who is free to walk around unsupervised, should be free to exercise his 2nd amendment rights.

    Charles
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    utbagpiper wrote:
    Repeater wrote:
    [T]he circuit court correctly concluded that Oregon’s concealed handgun licensing statutes are not preempted by the federal Gun Control Act. The concealed handgun licensing statutes do not affirmatively authorize controlled substance users to possess handguns; rather, they exempt a licensee from state criminal liability for the possession of a concealed handgun.
    Interesting. So what the court effectively ruled is that while a person may be prohibited under federal law from even possessing a gun, the State permit to carry a concealed gun does not consider such issues. Thus, a person could be prohibited from having a gun under federal law, but not be in violation of State statute for having a concealed gun.

    I'm of the firm opinion that anyone who really can't be trusted to exercise his 2nd amendment rights, should not be walking the streets unsupervised; he should be in jail on criminal convictions or confined to a mental hospital on legit safety concerns. Put in the positive perspective, anyone who is free to walk around unsupervised, should be free to exercise his 2nd amendment rights.

    Charles
    What I took from it is the way I have always looked at a license/permit to conceal: That the license/permit does not grant you the privilege of carrying, it allows you to exercise that already extant right (even though the law does not always recognize that right) in a way that the law normally prohibits. i.e. the permit/license does not allow carry; it allows concealment. Carry is (or should be) a separate issue altogether.

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    SlackwareRobert wrote:
    But wasn't the defendant an "alledged" maryjane user?
    I never heard of him being 'convicted' of anything in the reports I read.
    If the feds convicted him of drug charges they might have a leg to stand on
    if he ever left the state, or purchased a gun from another state.

    But if the sheriff threw the case to have case law on gun rights side,
    vote him back in.

    Can they ship magic brownies over state lines?
    There was no "defendant" involved.

    The individual was denied renewal of his CHL due to having a card from the state authorizing him to possess marijuana for medicinal purposes. My wife has the same card, and I have what is known as a "caregiver card" that allows me to transport pot from the grower to her and a few elderly folks who do not wish to deal with the growers themselves.

    I am also a friend of the sheriff of a neighboring county toJackson and agree with We-the-people's assessment of Sheriff Winters' motivation. There has been some conflict regarding some sheriffs believing that a medical marijuana user is prevented from possessing a gun and this will do a lot to clarify the situation.

    The "proof of the pudding" will be whether or not Sheriff Winters and Jackson County find grounds to pursue this matter in federal court in an attempt to deny legal marijuana users the ability to purchase and possess guns.

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    balackolama wrote:
    KBCraig wrote:
    ecocks wrote:
    While I view marijuana in much the same way as I do excessive drinking and more serious drug use, particularly with regard to operating machinery,vehicles or guns, it also seems clear that we allow alcoholics to have guns so we cannot deny the right to those legitimately prescribed for its use.
    That reminded me of an interesting case:

    http://www.getmadd.com/DontDrinkatHome.htm
    theres got to be more to this story

    or its a fake
    100% genuine, I remember when it was in the news
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    Regular Member We-the-People's Avatar
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    Another issue on the medical marijuana card and being denied a CHL or renewal.....if the court had ruled the other way, then sheriffs would have been able to deny for other prescribed drugs as well. Now how would that have flown with the "mature generations"?

    Some sheriffs here really don't like "shall issue" and would welcome the ability to deny for such BS reasons. Others go above and beyond like the Grant County sheriff who actually WELCOMES non resident applicants and will approve ANY non resident applicant (must be an adjoining state) who passes the required background check and submits the necessary documentation.

    Then you have the ones that absolutely abhorr the idea of law abiding citizens possessing firearms in public.
    "The Second Amendment speaks nothing to an unfettered Right". (Post # 100)
    "Restrictions are not infringements. Bans are infringements.--if it reaches beyond Reasonable bans". (Post # 103)
    Beretta92FSLady
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    Disclaimer: I am not a lawyer, nothing in any of my posts should be considered legal advice. If you need legal advice, consult a reputable attorney, not an internet forum.

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