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« White House moving to shut down CBS reporting of gunwalking | Main | CBS reporter talks about White House reaction »

Medicinal pot prescriptions and CCW permitting

Posted by David Hardy · 6 October 2011 09:27 AM

Winters v. Willis pending on petition for cert. in the US Supreme Court.

The sheriff refused to issue a "shall issue" CCW license to person who holds medicinal pot prescription, claiming federal law (which forbids users of marihuana to possess firearms) prevents its issuance. State law may require him to issue (the State law has several prohibited person categories, but none relating to this), but Federal law pre-empts the issue. [Yes, it presents the anomaly of a State official actually arguing for more Federal control over him. I don't know if pot use does strange things to a person's mind, but the pot issue certainly seems to do it].

The Oregon Supreme Court holds that the Gun Control Act provision does not pre-empt the State CCW law.

Deeply shocked that Federal law is not restricting his official conduct, the sheriff petitions the U.S. Supreme Court for certiorari.

The Respondent waives her right to file an opposition (commonly done when odds of a grant seem very law--why spend a thousand or two on printing costs?[ , but last week the Court ordered her to respond. That a sign it is at least thinking seriously about taking the case.

I can't see the pre-emption, since you can have a marihuana prescription without actually using it, and a CCW permit without possessing a firearm. I'd think the minimum requirement for a conflict would be that the Federal law forbids firearm sales to anyone with a prescription, whether they use it or not.

UPDATE: a reader emails, and the spam filter blocked for some reason, the following comment:

I have no dog in this fight, but I find it even more interesting that the ATF's letter to FFLs indicating
that medicinal user also places the purchaser in the category of unlawful user.

http://blogs.denverpost.com/crime/files/2011/10/ATFOpenLetter0921111.pdf

looks like a serious issue between the states and the feds here brewing.

· CCW licensing

4 Comments | Leave a comment

Ken | October 6, 2011 1:57 PM | Reply

We've got an even more obvious conflict here in the People's Republic of Massachusetts, where state law makes a Firearms Identification Card "shall issue" to people convicted of certain offenses (e.g., first offense DUI) after 5 years, even though the possible penalty for those offenses is sufficient to disqualify a person permanently under federal law.

Jim | October 6, 2011 5:26 PM | Reply

Actually, having an FID card is not alone permission to possess/buy a firearm. If a person is otherwise prohibited, he or she still can't have a gun. In Maine, they issue carry permits to persons who meet state law but not federal, so they issue the permit and warn the recipient that they still can't have a gun. I don't see that its a good analogy.

Matthew Carberry | October 7, 2011 1:27 PM | Reply

Set this alongside the Administration's decision to shut down the CA pot dispenseries and we have an actual possibility for the fabled "liberal-itarian" state's rights team-up over the issue.

The timing of pissing off the hippies over pot while pandering to them over immigration in Alabama and throwing gun rights into the mix, above and beyond F&F, at the same time seems to betray a real unravelling of the Administration's command and control.

heath | October 7, 2011 3:10 PM | Reply

J. Ginsburg says she wants the court to revisit and reverse Heller and find the 2nd Am only authorizes the state to arm citizens (vs. citizens arming themslves independent of state approval). Here's her chance to find the 2nd Am "collective model" protecting state law from federal pre-emption.

Too bad this case can't be bundled with a Nat. Guardsman who's been prescribed medical marijuana, and we'd see whether the "collective model" holds water.

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