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View Full Version : Ohio: Past Marijuana Citations = Lifetime Ban


sholling
07-24-2011, 1:27 AM
The law professors over on Volokh are discussing a law in Ohio that makes it a felony to ever possess a firearm if you've ever had a drug conviction of any sort - even a pot ticket. It's what amounts to a lifetime ban for infractions so minor that there was no possibility of jail time. The reason that I'm bringing this up is that as some of Volokh have pointed out it could tempt some antis (like our own commissars in Sacramento) to come up with lifetime firearm bans for those who've ever had traffic violations or minor drug convictions. Even in the face of Heller the Ohio Court Of Appeals ruled that it applies even to infractions that do not include the possibility of jail - like California's less than 1oz marijuana law. Now I don't want to get in the pluses or minuses of drug laws or drugs. Just the effect on 2nd Amendment rights.

http://volokh.com/2011/07/23/the-second-amendment-and-people-who-have-past-minor-misdemeanor-no-jail-time-possible-marijuana-possession-convictions

IANAL but I assume that it would be unwise for anyone with a past pot ticket to travel to Ohio with any arms. Not even for a hunting trip.

Note to dupe police I searched on the name Ohio and did not find a match.

Window_Seat
07-24-2011, 9:00 AM
Is this something that Chester could overrule?

Erik.

hoffmang
07-24-2011, 10:08 AM
No constitutional analysis was done by this court. It will be appealed and the OH Supreme Court is at least neutral on 2A issues.

-Gene

CavTrooper
07-24-2011, 10:30 AM
on the 4473 it asks:

"are you unlawful user of..."

I belive a drug conviction would be a pretty strong indication of "YES".

Change the laws or dont do drugs, your choice.

mofugly13
07-24-2011, 10:34 AM
"are you..."=/="were you...?

CavTrooper
07-24-2011, 10:35 AM
"are you..."=/="were you...?

tell it to the probation officer.

bwiese
07-24-2011, 10:46 AM
tell it to the probation officer.

Um, probation officer is irrelevant once any probation is served. He can basically throw you back in the cooler for traviailities without much legal foundation [since you were supposed to be in jail anyway]

Also, he's not a trained medical professional in determining usage vs addiction. Higher gateway for a fundamental right than to throw you back in jail when the sentence said you were already likely to be there anyway.

No currency of nor regular use == "not addicted to" and "not unlawful user of" status for 4473 purposes. However, boneheads with a "medical" M.J. card have likely dug themselves a hole.

sholling
07-24-2011, 11:46 AM
on the 4473 it asks:

"are you unlawful user of..."

I belive a drug conviction would be a pretty strong indication of "YES".
The phrase "are you" needs to be distinguished from the term "have you ever been". A record only deals with the past and has little if anything to do with now. Many of our members are recovering alcoholics with decades of sobriety - are you saying that they should face a lifetime ban? By your standard I'm sure that you feel that any history of a traffic infraction - even once decades ago is prima facie evidence that you are far too irresponsible to ever be allowed to own a gun or a car.

blazeaglory
07-24-2011, 12:22 PM
on the 4473 it asks:

"are you unlawful user of..."

I belive a drug conviction would be a pretty strong indication of "YES".

Change the laws or dont do drugs, your choice.

So because I smoked pot in high school once I am a drug user?

The question asked if I "AM an unlawful user of" NOT if I have used in the past. I can be sober and clean at the time of answering that question and not have used any drugs in years.

Please dont turn this into a drug debate.

nicki
07-24-2011, 7:23 PM
In Ohio they may in fact prosecute anyone who had a pot conviction and who owns a gun.

Bill is "legally right" that having a MJ card and having guns is probably a bad combination.

That being said, the Feds don't get involved in Pot cases unless the person has a around 6 pounds or if they have 99 plants.

State action will depend on which county you happen to be in.

Currently 70 percent plus support medical marijuana and the state almost passed flat out legalization last election.

Yeah, there was that prosecution in Fresno, but that was because the guy chased the person who stole his plants down the street and shot him dead.

This is an example of how things are not so "good" outside of California.

Nicki

Spartan
07-25-2011, 9:11 AM
Isnt Ohio part of the 6th? The court has ruled that once all civil rights are restored someone can own a firearm.

wildhawker
07-25-2011, 11:31 AM
Notwithstanding my agreement with all other points in the below, the med. pot card is no more probative of one being a 'user' than purely speculative accusations by the probation officer. It's also [in my view] protected speech (until the holder becomes a 'user', which is a separate act from possession of the card).

-Brandon

Um, probation officer is irrelevant once any probation is served. He can basically throw you back in the cooler for traviailities without much legal foundation [since you were supposed to be in jail anyway]

Also, he's not a trained medical professional in determining usage vs addiction. Higher gateway for a fundamental right than to throw you back in jail when the sentence said you were already likely to be there anyway.

No currency of nor regular use == "not addicted to" and "not unlawful user of" status for 4473 purposes. However, boneheads with a "medical" M.J. card have likely dug themselves a hole.

wildhawker
07-25-2011, 3:05 PM
Are you arguing that e.g. I could not seek out a card purely for the expressive value of protesting the government's policy on criminalizing victimless private acts?

Does my having a library card mean that I do rent books from the library?

Does the simple possession of a prescription reach the nexus of taking a medication?

-Brandon

The MJ card is basically a prescription to use MJ for medical purposes though and IMHO has no legitimate use for 1A purposes. It is in fact a document provided by a Doctor for an ailment that you went to see that doctor for.

Notwithstanding, you can choose not to take that prescription, but the doctor has in fact advised you take use this drug for your physical ailment. I would love to see where a prescription for a drug can ever be related to the 1A.

resident-shooter
07-25-2011, 3:32 PM
Good job, Ohio.

wildhawker
07-25-2011, 4:32 PM
Let's reduce this a bit for now, and come back to the matters of expression.

Is due process for substantially restricting a fundamental right sufficiently satisfied when the only fact presented is that one possesses the capacity to purchase and consume pot (in conformance with state, but not federal) law?

-Brandon

Brandon, i would not argue with you on most things in the legal speak :D

However, the MJ card is in fact a prescription (per CA law) Its INTENDED use was for being able to use medical MJ for the purposes i described. Medical ailments. You must be seen by a doctor, you must have a sickness or ailment that the doctor deems treatable and you are not supposed to lie about your ailments for the sake of obtaining a prescription drug. Am i wrong here?

As i mentioned in my first post, i mentioned that having the prescription does not force the person to actually use it. However to say you use it for a 1A claim, You first must meet the criteria of actually being ill and having a doctor agree with you that MJ will in fact make you better or at least alleviate the pain from the ailment.

Shotgun Man
07-25-2011, 4:59 PM
You might have the doctor's note as a preemptive measure to guard against an overzealous government wrongfully prosecuting and/or framing you for mj/hashish possession.

ivsamhell
07-25-2011, 5:22 PM
Brandon, i would not argue with you on most things in the legal speak :D

However, the MJ card is in fact a prescription (per CA law) Its INTENDED use was for being able to use medical MJ for the purposes i described. Medical ailments. You must be seen by a doctor, you must have a sickness or ailment that the doctor deems treatable and you are not supposed to lie about your ailments for the sake of obtaining a prescription drug. Am i wrong here?

As i mentioned in my first post, i mentioned that having the prescription does not force the person to actually use it. However to say you use it for a 1A claim, You first must meet the criteria of actually being ill and having a doctor agree with you that MJ will in fact make you better or at least alleviate the pain from the ailment.

its only a recommendation, not a prescription. You can get the recommendation without getting a card, then I'd imagine because of the hippocratic oath only you and the doctor would ever know.

garandguy10
07-25-2011, 6:47 PM
No currency of nor regular use == "not addicted to" and "not unlawful user of" status for 4473 purposes. However, boneheads with a "medical" M.J. card have likely dug themselves a hole.

Please explain why a Medical M.J. card would be any different from a MD. prescription for lets say, Oxcontin as far as 2nd amendment rights go?

If I understand what you are saying, it MAY be constitutionally valid to suspend or revoke a citizen (boneheads) 2nd amendment right because he/she was once(or currently) prescribed a Narcotic by a licensed doctor of medicine.

If that is truely the case, then the anti's can put tens of millions of people(boneheads) in jail overnight to await their fate in court.

Please note I am referring to the possession of a Medical M.J. card only and the possession of a Doctors Prescription for Narcotics ONLY and NOT reffering to any possession or use of ANY illegal or legal substance.

Shotgun Man
07-25-2011, 8:49 PM
its only a recommendation, not a prescription. You can get the recommendation without getting a card, then I'd imagine because of the hippocratic oath only you and the doctor would ever know.

The medical privilege doesn't apply in criminal cases, only civil cases, at least according to the CA evidence code last I checked.