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Medical Marijuana and Gun Rights

by "Radical" Russ Belville

For over thirty years, the federal War on (Some American Citizens using Non-Alcoholic, Non-Pharmaceutical, Tobacco-Free) Drugs has decimated our civil liberties. There is hardly a single right in the Bill of Rights that hasn't been affected.

The right to free speech, guaranteed in the First Amendment, has been curbed when the government refuses to take anti-drug war advertising on public transit. The right to free exercise of religion -- at least for Rastafarians, Coptic Christians, and Native Americans -- has been curbed when those religions aren't allowed to acquire their religious sacraments (marijuana, peyote, mescal). The right to peaceably assemble is curbed when hemp fests and protests are shut down by the cops.

Our Fourth Amendment rights against unreasonable search and seizure have been most abused during this Drug War. Drug dogs can be brought to search your car, even if there is no reasonable suspicion of a drug crime. Current decisions (Caballes) even open up the possibility of door-to-door, parking lot, or random public drug dog searches.

Our Fifth Amendment rights against self-incrimination are abused every time we are forced to provide urine or blood or hair for drug testing. Our private property is taken without just compensation through the scourge of civil asset forfeiture.

Our Sixth Amendment rights to a speedy and fair trial are violated every time a state medical marijuana patient or grower is prohibited from bringing up their medical necessity and adherance to state law in a trial.

Our Eighth Amendment rights to be free from excessive fines or cruel and unusual punishment (it could be argued) are violated when simple gardeners suffer massive fines or seriously ill patients suffer imprisonment without their life-saving medicine (see case of Steve Kubby)

Our Ninth Amendment rights, which affirms that just because the Constitution doesn't list a right doesn't mean the people don't have a right, were violated when the Federal Government took upon itself the right to regulate controlled substances. (I challenge you to find anything in the Constitution granting the government the right to control what we put in our bodies.)

Our Tenth Amendment rights of state sovereignty are violated every time the federal government harasses state patients who are legally protected under state medical marijuana laws.

But one of our most cherished rights is one we don't often think of as being subverted by our Drug War. That is our Second Amendment right to keep and bear arms. Most of our federal drug laws mandate minimum federal sentences for drug crimes. The sentences for those crimes are almost always increased if the defendant is found in possession of firearms. Thus our government is coercing drug users to give up their 2nd Amendment rights. Now, certainly, a case can be made that violent drug trafficking gangs should be punished more for their possession of firearms. But what about the average, non-violent, casual marijuana smoker?

The area where our Second Amendment rights are most likely to be affected by the drug war is for legal state medical marijuana patients. Federal law prohibits habitual drug users from possessing firearms. Well, illegal drug users, anyway; I've heard no instances of alcoholics, smokers, Darvocet users, Vicodin users, or Rush Limbaugh losing their 2nd Amendment rights for their habitual drug use. But a medical marijuana patient in California, Oregon, Washington, Alaska, Hawaii, Nevada, Montana, Colorado, Maine, or Vermont is just as legal a drug user as any other prescription drug user (and more legal than Mr. Limbaugh, if his doctor-shopping allegations are true). And the licensing and regulation of firearms is a matter handled at the state and local level.

These issues collided in a case decided Tuesday right here in my hometown of Beaverton in the Washington County (Oregon) Court:

HILLSBORO, Ore. (AP) - A Washington County judge ruled that a Beaverton man can hold a concealed handgun permit despite being a medical marijuana user.

Washington County Sheriff Rob Gordon revoked Steven Schwerdt's permit three months ago when Schwerdt indicated on a form that he had a medical marijuana card and frequently used the drug.

Judge Marco Hernandez said Monday that the county did not convince him that Schwerdt was violating a federal law that prohibits a habitual drug user or addict from possessing a firearm.

"The idea is that Congress did not want people who are under the influence to be buying or possessing guns," Leland R. Berger, Schwerdt's attorney, said after the hearing. "Here, the use is medicinal. I think the sheriff unfairly singles out medical marijuana users."

Part of Berger's interrogation dealt with the form that Washington County was using. The form had questions on it that aked about a person's medical marijuana status, on the pretense that the County had the right to know whether it was licensing habitual drug users in violation of the federal ban. Berger rightly pointed out that the form did not contain questions to determine if the applicant was in violation of all the federal bans to possessing a concealed weapon. In other words, the sheriff was singling out medical marijuana patients, but not others who also may be in federal violation.

Gordon denied targeting medical marijuana users. The concealed handgun form also asks applicants whether they are illegal immigrants, fugitives from the law, or whether they have been convicted of domestic violence or been dishonorably discharged from the armed forces. Under federal law, people who fall into those groups, as well as users of unlawful controlled substances, are prohibited from possessing guns.

"I can't license someone to carry a weapon that the federal government says they can't have in the first place," Gordon said. "The legislators have to get together and get some clarity on that."

The sheriff does have a point, and that is the absurdity of legal state marijuana and illegal federal marijuana. We saw in the Raich v. Gonzalez case that the Supreme Court believes that federal drug laws trump state medical marijuana, so I believe if Gordon and the county took this up on appeal, it is likely to be overturned. And that would be a sad day, when Oregon's 12,500+ medical marijuana patients (and the tens of thousands in the other nine medical marijuana states) officially lose yet another of their cherished civil rights, simply because they use a safe, effective, natural plant for relief rather than a government-approved, side-effect-laden, dangerous pharmaceutical.

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