Oregon Court of Appeals to decide 2nd Amendment rights of medical marijuana patients
Wednesday, November 4th, 2009 at 6:06 pm | By: Radical Russ
SALEM, Ore. (AP) — The right of Oregonians to use marijuana for medical reasons and also to obtain concealed handgun permits is being challenged by local sheriffs who say federal law prevents those people from packing heat.
Advocates for the state’s medical marijuana law countered Wednesday in the Oregon Court of Appeals that the sheriffs simply don’t like the program and are looking for ways to undermine it.
Both sides now are looking to the courts to say definitively whether there’s anything to prevent Oregon from issuing the concealed handgun permits to users of medicinal pot.
Sheriffs from Washington and Jackson counties say, though, that they want clarification from the court on whether federal gun laws prohibiting illegal drug users from possessing handguns applies to people who have permits to use marijuana for medical reasons. Marijuana is still classified as a controlled substance under federal law, they said.
Lower courts had twice ordered the two sheriffs to give weapons permits to people who had lost them because they are medical marijuana users, and both appealed those rulings.
I hope the Oregon court takes some guidance from the California Supreme Court and US Supreme Court rulings on San Bernardino and San Diego counties’ suit over registry ID cards. The California counties, headed up by law enforcement ideologues that hate their state’s medical marijuana law, thought they didn’t have to enforce the state law that required counties to make ID cards because the federal law says all pot is illegal. Both the state and federal supreme courts deferred to earlier appellate judgments that state and local cops are charged with enforcing state and local law, not federal law.
By that reasoning, I’d assume county sheriffs in Oregon are bound to enforce state law, and since Oregon’s medical marijuana law says it is to be treated “like other medicines”, unless the sheriffs are pulling concealed handgun permits from Vicodin and Oxycontin users, they shouldn’t be pulling them from medical marijuana users.
Furthermore, since this state has no dispensary system, patients are forced to grow their own or store large quantities of medicine, making them prime targets for robbers and home invasions – disabled people with lots of weed in their homes are the very people the 2nd Amendment was enacted to protect!
Topics: concealed handguns, guns, handguns, jackson County, Lee Berger, Oregon, Washington County
My carry permit expired on 4/20. How ironic is that.
Russ,
Please confirm that NORML has legal counsel helping the medical cannabis users attain their concealed handgun licenses. I will pay up my $35 for a regular membership, if NORML has lawyers advocating for the rights of the people in this case.
You might see if OFF would be willing to assist. Maybe it’s a long shot, but they claim to be “Oregon’s only no-compromise gun lobby.” Make them live up to their motto, or mock them publicly.
It would be nice if the ACLU would be willing to assist, but I have never seen that organization show much interest in protecting the rights of citizens in matters of guns or drugs. (ACLU folks, represent!)
-ED
AGAIN with law enforcement pushing their philosophy of “if they want their weed, then we are gonna take away everything else.”
honestly, what massive vendetta do they have against the people who use a freaking plant as medicine?
I think that vendetta is best summed up by South Park:
“They’re comin’ to take our jobs!”
Medical marijuana = people they can’t bust for weed = less arrests = less cops. Especially if medical marijuana = greater acceptance = eventual legalization = a lot less cops.
Here in Oregon, we’ve seen attempts by law enforcement and business to set the following restrictions on medical marijuana patients:
And all of these have been supported by the very powerful law-enforcement and construction industry lobbies, and each time they are beaten back by a coalition of volunteer non-profit Oregon medical marijuana activists, not the least of whom is Oregon NORML’s Madeline Martinez.
Oh. I can see why they could view it as a potential job loss but comeon. They have PLENTY of REAL crime to deal with like harder drugs, robbery, murder, tax evasion, etc. not to mention it’s pretty damn selfish to ruin other peoples lives for your career.
but they don’t see it that way, they just want people who are easy to arrest and who don’t resist.
maybe i should move to Oregon. there is ZERO support in Florida other than an outdated site by the name “JAXcan”.
oh and thanks for that list, i’m writing a paper on this for college.
It would be great if you could coax some of NORML’s legal talent to review this issue in depth and post it in an article. Congress has enacted some stupid and unconstitutional law(s) related to gun purchases and drug use. It prohibits the sale, at least, of firearms to people who illegally use, or have illegally used controlled substances. This is unconstitutional because it compels citizens to testify against themselves, and because if the citizen indicates illegal use of controlled substances, the dealer is not allowed to execute the sale. To my knowledge, it does not prohibit possession of a firearm based on past illegal use of controlled substances. Possession of firearms and illegal substances together would be a bad combination, and is surely covered by other law. But, all of these laws were written before the Heller decision. There is much to be sorted out relating to that decision. I think it left far too many opportunities for governments to deny citizens their right to keep and bear arms.
Unfortunately, it might be hard to find support from either “conservatives” or “liberals” when considering legislation lenient on drug use/possession and firearm use/possession. I don’t know of any Oregon politicians with balls enough to stand up and defend both the responsible possession/use of drugs and the responsible use/possession of firearms. Of course, it they are both being used responsibly, they would not be used together, except in the most dire of circumstances. This is very complex. The government will be eager to use the complexity to justify usurping the rights of citizens, rather than creating thoughtful laws that allow citizens as much freedom as possible. Government feeds off of the freedom of the people. (Mmmmmm, tasty freedom!)
Damn right! But, the 2nd Amendment is not about the right of self-defense. It is about enabling the preservation of a free state. Your right to keep and bear arms for your own defense is derived from your right to defend yourself. This is a natural right that is not enumerated in the Bill of Rights, but is protected by the 9th Amendment.
-ED
I thought the SCOTUS just decided that the 2nd Amendment did enumerate a personal right to self defense vis a vis the 2nd Amendment? Regardless, I think we’re in agreement here. I’m glad I’m not the only one who remembers the “A well-regulated militia, being necessary to the security of a free state,” part.
Currently NORML Legal Committee member Lee Berger is presenting this case. He secured the gun rights of Mr. Schwerdt and others in the prior cases.
As for the 5th Amendment self-incrimination angle, I think it might partially work. Self-incrimination refers to busting yourself before you’re sentenced. If you’re convicted already, you’re incriminated, no self- required. So I think they can ban sales to those already incriminated. Banning sales to those currently using but not convicted is something else. Banning sales to a medical marijuana patient on federal grounds can only happen if the medmj patient admits to a federal crime, and there’s your 5A hook, a la the Tim Leary case in ‘69 that overturned the Marihuana Tax Act.
I’ll bring it up with John Lucy, see what he thinks.
Though the Wikipedia pages states:
I took a quick look at the Heller Decision but could not find where they tied it to the natural right of self-defense. They start out directly by observing that the amendment clearly states that it is a right of the people, not of the states. That’s all they really had to do. The 2nd Amendment protects the right of citizens to keep and bear military class arms, to ensure the preservation of the free state. Their intent was clearly to guarantee that the locus of power stayed with the general citizenry, not a small subset of the population comprising an oppressive government. By referencing some state constitutions, the court did associate the right to keep and bear arms with the personal right to self-defense. But, the text of the 2nd Amendment does not address the personal right to self-defense. That is an unenumerated natural right which is protected by the 9th Amendment. (Like your right to provide for your own medical treatment, and your right to recreate responsibly.)
When you buy a gun from a federally licensed dealer, and when you apply for a concealed handgun license in the state of Oregon, you must fill out a questionnaire which asks direct questions about whether or not you illegally use controlled substances. You must then sign the document attesting to the truth of the statements. This is a clear violation of the 5th Amendment, which prohibits the government from compelling citizens to testify against themselves. If you indicate any condition that can be interpreted that you have violated the controlled substances laws, the dealer will be prohibited from selling you the firearm, or, in the case under consideration here, the sheriff will (or may attempt to) deny your application for a concealed handgun license. The document might also be used as an admission of criminal activity in a prosecution against the applicant. I don’t think the sheriff is bound by the federal law. It is kind of a quirky situation, though. But, the more important point is that the government is prohibited from compelling you to testify against yourself.
-ED