Sunday, April 9, 2017

SB 378: Marijuana and CCWs

SB 378 would amend NRS 202.360, the state prohibited person guidelines, to remove medicinal marijuana permittees as state prohibited persons. 
"For the purposes of paragraph (d) of subsection 1, a person who holds a valid registry identification card issued to him or her pursuant to NRS 453A.220 or 453A.250 shall not be deemed to be an unlawful user of, or addicted to, a controlled substance solely because the person engages in the medical use of marijuana pursuant to chapter 453A of NRS."
The bill also amends NRS 202.3657 to change the definition of "habitual users of controlled substances" to not include medicinal marijuana permittees in regards to concealed firearm permits.

"For the purposes of paragraph (d) of subsection 4, a person who holds a valid registry identification card issued to him or her pursuant to NRS 453A.220 or 453A.250 shall not be deemed to have habitually used a controlled substance to the extent that his or her normal faculties are impaired solely because the person engages in the medical use of marijuana pursuant to chapter 453A of NRS. As used in this subsection, 'medical use of marijuana' has the meaning ascribed to it in NRS 453A.120."
Brass tacks on the firearm portion of this bill is that medicinal marijuana permittees would no longer be in violation of Nevada CCW or firearm laws. However, this does not affect federal prohibited persons laws. The jury is out on whether or not the ATF truly cares, but they have definitely stated that under federal law, medicinal marijuana use makes you a prohibited person. The Ninth Circuit court, which covers Nevada, has also confirmed this fact out of a Nevada case, Wilson v. Lynch. Short answer, don’t smoke pot if you want to own/carry a gun. Second short answer, don’t get an MMJ card if you want to own/carry a gun. If marijuana is so precious to you, write your congressman.

Now for the rest of us, would SB 378 make CCW holders Brady exemption to the background check void?

Right now, Nevada residents with a valid concealed firearm permit are exempt from the background check portion of buying a gun from a dealer (but not the Form 4473). This saves us $25 on each gun purchase and valuable time waiting for the gun store clerk to get through to Carson City. Nevada’s requirements satisfies the Brady Act exemption language that requires: 
"the law of the State provides that such a permit is to be issued only after an authorized government official has verified that the information available to such official does not indicate that possession of a handgun by the transferee would be in violation of the law;" 
There was some issue with this several years back because some sheriffs were not going through the entire CCW background process at renewal, which caused us to lose our exemption for a while. At this time, all valid concealed firearm permits qualify for the exemption.

This could go a few ways:
  1. Sheriffs drop any questions or investigation into the medicinal marijuana issue, therefore if they don’t ask, they can’t possibly know if a person is in violation of federal law (don’t ask, don’t tell).
  2. The ATF simply doesn’t care. They haven’t exactly been chasing down medicinal marijuana using gun owners.
  3. The ATF does care and Nevada loses its Brady exemption.

If the ATF does something, it’s most likely going to be Number 3. Even with the debate at the federal level over states and decriminalized marijuana, the exact reaction is unknown. That being said, if the ATF canceled the exemption in the past because sheriff’s were only running CCW holders through the computer and not doing fingerprints, it’s likely the ATF would find the MMJ exemption to be problematic.

The DPS Point-of-Contact section (the background check people) would be hit hardest by losing the Brady exemption. The exemption dramatically reduced their work load, which meant less time for your dealer on the phone while you stood around waiting for government permission to take your purchase home. If DPS couldn’t handle the extra workload Question 1 would have caused, they certainly won’t be able to handle the background check volumes an exemption disqualification would cause.

Metro testified that they will have to side with the ATF and will not be issuing CCWs to MMJ users. If all sheriffs in the state did this, then there probably wouldn’t be an issue with us possibly losing our exemption, but Joe Lombardo doesn’t control all 16 other sheriffs (thank God).

This is a feel-good bill by the liberal marijuana caucus. It only affects the state level and does not address the very real federal concerns and potential reactions. Federal law trumps state law and if the Feds earnestly wanted to keep marijuana users from buying and owning guns, they certainly could do so. Marijuana and guns is a debate that needs to happen at the federal level before potentially harmful decisions are made in the statehouse. Senator Segerblom, a proponent of legal pot, should see to it that this bill is amended to read something like “Should the Congress or ATF determine medicinal marijuana no longer disqualifies a person from possessing a firearm…” That way, the rights of everyone else who doesn’t smoke pot wouldn’t be affected by a rather selfish exemption.

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