Oregon county appeals concealed handgun versus medical marijuana decision
Wednesday, June 11th, 2008 at 3:15 pm | By: Radical Russ
Taking a pot shot County appeals concealed handgun versus medical marijuana decision- OregonLive.com
Washington County’s Board of Commissioners Tuesday approved filing an appeal of a circuit court judge’s ruling that federal firearms laws do not supersede Oregon’s medical marijuana law when it comes to obtaining a state Concealed Handgun License.Sheriff Rob Gordon revoked or denied CHL’s to Steven Schwerdt, Paul Sansone and Lee Wallick on the basis they disclosed they have used a controlled substance, medical marijuana, regularly and for prolonged period of time. Gordon believes these people are barred by federal law from possessing firearms.
Judge Steven L. Price said as a matter of law, Oregon’s CHL requirements do not include abstaining from medical marijuana nor qualifying to possess firearms under federal standards.
The commissioners agreed with Gordon’s opinion that it is necessary to obtain a binding legal opinion on the issue from the Oregon Court of Appeals.
County counsel also wants answers to questions about whether issuing permits could subject the sheriff and the county to federal prosecution or civil liability.
The attacks on medical marijuana patients for their legal state-approved use of cannabis are staggering. In addition to wanting to deny patients their 2nd Amendment right* to own a handgun, states have pushed to deny medical marijuana patients from having driver’s licenses; from working in so-called “dangerous” positions; and from working as teachers, doctors, lawyers, public employees or elected officials.
Private enterprise denies medical marijuana patients the right to work through drug testing. Government agencies evict patients from federally subsidized housing. Customs won’t let patients cross the US/Canada border. Divorce lawyers and child protective services will use a patient’s medical marijuana use as a factor in determining the custody of patients’ children.
It all comes back to the criminalization of marijuana; the understandable blurring of the lines between recreational and medical use that are always going to exist so long as marijuana is prohibited to the majority of its users. For there are much more powerful legal prescription drugs than cannabis, but nobody fears the Prozac patient owning a handgun, the Xanax patient working in a “dangerous position”, or the OxyContin patient having a driver’s license.
*Yes, attorneys and gun control supporters, I know it’s not fully decided whether there is, in fact, a person 2nd Amendment right to own a concealed weapon.
Topics: 2nd Amendment, handguns, Oregon
I have been trying to aquire info on having legal marijuana and having a spouse that is a gunsmith. Right now he stays in Texas due to his gun business but plans to move to Montana. I am disabled and have applied for medical marijuana. I need legal advise before building gunshop on our mutually owned proprty in Montana. Anyone have any advice?
As a resident of washington county and a medical card holder I can’t believe nobody cares about our rights. I’m proud to be an American and one of the best things about America is that you have the ability to protect yourself and your family. I’d rather be tried by 12 than carried by 6. I will never feel sorry for doing what I have to do to protect my family.
The article says “County counsel also wants answers to questions about whether issuing permits could subject the sheriff and the county to federal prosecution or civil liability” which is already covered:
166.291 Issuance of concealed handgun license; application; fees; liability –
(6) No civil or criminal liability shall attach to the sheriff or any authorized representative engaged in the receipt and review of, or an investigation connected with, any application for, or in the issuance, denial or revocation of, any license under ORS 166.291 to 166.295 as a result of the lawful performance of duties under those sections.
Also, under the same chapter and section:
(L) Has not been convicted of an offense involving controlled substances . . .
I could not find anything that bars some one LEGALLY PRESCRIBED controlled substances, it only states you don’t get one if you have been CONVICTED of an offense involving controlled substances. But, I am not a lawyer.
As far as some one saying that we should try to get Sheriff Rob Gordon out of that position, I have to disagree as I believe he has done a lot of good for Washington County. Not everyone has a perfect understanding of the laws, which is why it is going through an appeals process for them to try to figure this out.
My biggest problem is spending over $800.00 to get a 22 year old misdemeanor expunged and then have to go through the entire re-application process after I have already carried legally, without incident, for 13 years.
I need to find a lawyer that can either advise me how to get the record expunged by myself or one that will do it for a slightly more reasonable cost.
The sheriff is not to blame it the legislators that passed the law without provision for a grandfather clause that should be taken to task.
It’s disgusting, from all reports the statutes for the CCW law in Oregon were never supposed to change but they are using this 911 mentality to justify it saying that it makes us all “safer”.
The harsh reality is that if someone needed my help I can no longer provide it, nor can I defend myself, so the overall “safety” of my community has been reduced.
Dang! Of course I meant “This is something that no one should tolerate.“
Pissed,
I agree that it sucks to have to pay a lawyer to have your record expunged. But, this is probably the cheapest way to get your CHL back. The law states:
If you are not subject to the disabilities in the law, then you are back to a “shall issue” condition. The sheriff must issue the CHL.
You should also do what you can to remove the sheriff from office, and to advocate for the revision of the law. I think that the right to self defense is a fundamental natural right protected by the 9th Amendment of the US Constitution. From this right is derived your right to provide what you consider to be the most effective method of self defense. The government may assert authority to regulate whether you can carry concealed. There may be legitimate reasons for such regulation. Of course, citizens may also have a legitimate reason to carry concealed. But, in any case, if the government prohibits you from carrying concealed, then they must certainly respect your right to carry open. Otherwise, they have compromised your right to provide for your own self defense. This is something that no one should not tolerate.
-ED
It appears that if I want to pay a lawyer to have my record expunged that I can then reapply…
Disgusting that I carried legally for 13 years in this state and now a misdemeanor from 22 years in the past has suddenly become an issue.
I think this might be the bill referred to by Pissed: House Bill 2334
I think it may provide a way to avoid having an old record cost you your CHL, but, you will need to get a lawyer.
-ED
Pissed,
That is infuriating, oppressive, craziness!
What do you plan to do about that?
I suggest that you carry open if they pull your license. If we tolerate these bastards chipping away at our rights, they are going to keep chipping away at our rights. The chips have been getting much bigger, lately. Government feeds on the freedom of the governed. Just look at the word – government. To the extent that you are governed, you are not free. That government is best which is the least.
-ED
Russ,
I was way tired and, rather than opening a new tab, I opened a new link in my current tab. I knew immediately what I had done. When I hit the back button, my stream of thoughts was gone. I will try to avoid polluting your fine board with whining, though, if I ever do something like that again.
I’ll try to return soon, to re-create that lost post. I had some important points to make, and I was about to bring the topic around to my main complaint about NORML.
Y’know, some boards let you preview your comments before you post them. Please consider that a feature request for the Stash board.
-ED
Pissed: Now this is something I haven’t followed. I will follow-up with my attorney friends and see if I can’t get an interview for a story on this. Thanks for the tip.
Evil Dick: after blogging and commenting for years now, I’ve learned one thing well: before posting, press CTRL+A, CTRL+C (Windows). That way, if the post crashes, you’ve got your 30 minutes of typing saved in the paste buffer.
In other words: I feel your pain. Been there, many times. But thanks for commenting anyway.
Add to this the fact that a bill was passed in the Oregon house that took effect Jan. 2008 that now makes ANY conviction for a controlled substance as sufficient cause to revoke/reject concealed handgun permits.
I have legally concealed carried for 13 years in this state and I was just informed that my permit will now be denied because of a misdemeanor for pot 22 years in my past…
F!!!!, I just lost about 30min of additional comment due to an erroneous click. Maybe I will try to do it again sometime.
-ED
Russ,
Thanks much for your response. I am content with your explanation of NORML’s position that users of marijuana should have all the same rights as those who choose to use other consciousness altering substances. Naturally, any right must be exercised responsibly, so I’m sure that no one would intend that firearms be actively used by anyone who is under the influence of substances that might impair good judgment or the ability to handle such weapons safely, except in real cases of self defense where you just have to do the best you can with what you have.
Now, regarding that first part of the 2nd Amendment. It should never be forgotten, but in most discussions regarding the individual right to keep and bear arms, this clause need not be considered. It is a subordinate, explanatory clause that emphasizes the importance of the right. It was the intention of most (I hope) of founders of our country that the locus of power always be with the people. They did not want a standing army, and certainly did not want a disarmed citizenry. It is unfortunate that, even today, the ultimate ensurer of freedom is the bullet. And, of course even that is no guarantee. But, you do the best you can with what you have, at the time of need. Or, you submit to the boot of the gestapo. The authors of the constitution understood that government is the enemy of freedom. Government feeds off of the freedom of the citizens. Any marijuana user should be painfully aware of that fact. They understood that the best way to guarantee the freedom of the people, and the security of the nation, is to see that the people always have access to the tools that might be needed to ensure their ability to successfully defend their freedom and the nation. It is really a good idea! Every American should have firearms and know how to use them safely and effectively. The government, of course, enemy of freedom that it is, does not like the people defending themselves. Government wants the people to be submissive and to rely on the well armed police force to protect them. Baaa! I have heard that the Supreme Court has declared that the police have no obligation to protect the citizens. Here are some references:
http://www.freerepublic.com/focus/f-news/1976377/posts
They will be happy to come draw a chalk circle around your rotting carcass, but only a fool would expect the police to protect him (or her, as too often is the case).
The main clause acknowledges a right to keep and bear arms, and acknowledges that it is a right of the people, not the state. This is unambiguous.
This leaves us with only a single weasel word in the subordinate clause – “regulated.” Many anti-gun folks like to argue that this implies some intent that the government has, or should have, some authority over the citizens’ ability to exercise this right. Well, either you have a right, or you don’t have a right. This is why I oppose efforts to revise legislation in order to make marijuana more available to those who might want to use it. The government has no authority to prohibit any citizen from using marijuana responsibly. The consciousness of a free citizen is not the dominion of the government. But, naturally, as the enemy of freedom that it is, the government claims the authority to prohibit such activity. As the domesticated prols make no effort to assert their right and restrain the government, government sends its thugs out to kick your door in and shoot you in your bed. Hey, why would any law abiding person object to that?
I think there is a military use of the term “regulation,” one which means something like “meeting a certain specification.” I’m not a linguist, but I think, if you were to picture yourself in a line of kids with shaved heads, and there was a roided out thug wearing a Smokey the Bear hat yelling in your face, telling you to drop and do 50 push-ups because “THAT’S NOT REGULATION POLISH ON YOUR BOOTS, BOY!,” you would know exactly what he meant. And so, it may be that, when the explanatory clause of the 2nd Amendment refers to a “well regulated militia,” it may be imposing on the government the responsibility to see that the militia (those in the general population expected to take up arms to defend the country) is properly armed to engage in, and successfully defend the Unites States of America.
Sorry if I have rambled a bit. But, thanks for taking a few minutes to consider these thoughts.
-ED
You make a lot of the same arguments I make regarding the 2nd Amendment. However, everyone always seems to forget the first part of the amendment:
“A well-regulated militia, being necessary to the security of a free state,…”
So, which well-regulated militia do you belong to?
“…the right of the people to keep and bear arms shall not be infringed.”
The Supreme Court is finally looking at a case that will determine if the people explicitly have the right to bear arms, or whether that only exists in the context of a militia.
Personally, I think SCOTUS will affirm that right, for reasons you listed above (the right to self-protection seems natural and unalienable to me), but primarily because, in the context of the 18th century, a well-regulated militia was created by rounding up all the people who have guns. The Founders were leery of a federal standing army, so they couldn’t have meant they would only allow the militia to have guns… that’s a standing army.
NORML doesn’t have an official position on this, aside from the notion that cannabis consumers – medical or recreational – should have all the same gun rights as beer drinkers and tobacco smokers.
The 2nd Amendment to the US constitution explicitly acknowledges the right to keep and bear arms as a right of the people. There is also an even stronger 9th Amendment right to keep and bear arms, derived from the right of each individual to provide for his or her own defense. There are not many legitimate natural rights, but the right to defend yourself is unquestionably one of them. I believe that the US Supreme Court will unambiguously acknowledge that the 2nd Amendment speaks to an individual right, rather than a right of the states, later this year.
Those who try to argue that the 2nd Amendment’s use of the word “the people” refers to the state, rather than individual citizens, are just blowing smoke. Take that interpretation and apply it to all the other uses of the term “the people” in the bill of rights and see how that works out for you. No, when the First Amendment states that the people have a right to peaceably assemble and to petition the government for a redress of grievances, well, that only means that the states can hold assemblies, not individuals. You don’t have a right to be secure in your persons, houses, papers, and effects from unreasonable searches and seizures. Silly, when the 4th Amendment explicitly identifies this as a right of the people, it is referring to the rights of the states, not individual citizens. Good job. Real good reasoning. How does that work out for you? Chip away at one right and you chip away at them all.
Now, I have wondered about this CHL issue for a while. I don’t think we can count on the ACLU to stand up for the 2nd Amendment. Does NORML have a position about this? You seem sympathetic to the argument that medical marijuana should be treated no differently than any other medication. Is NORML willing to help defend people caught in legal dilemmas related to this conflict of laws?
The best action, in my opinion, would be to demand that Congress reschedule marijuana, as there can be no serious doubt about the medical usefulness of this herb.
-ED