Gun Laws

Medical Cannabis and the Second Amendment – What are a patient’s firearms rights?

Patrick Nightingale testifying at the Pennsylvania State House.

Medical Cannabis and the Second Amendment – what are a patient’s firearms rights?
By Patrick K. Nightingale, partner Cannabis Legal Solutions

The issue of a medical cannabis patient’s Second Amendment rights is of great concern here in the Commonwealth of Pennsylvania where we have a long tradition of hunting and sportsmen.  Now that physicians are registered and patients can seek recommendations many are wondering whether they will lose their Second Amendment rights or be required to surrender their firearms.

The answers are not entirely straightforward.  Under PA law a medical cannabis patient is not prejudiced relative to firearms ownership.  Under federal law, however, that same patient risks a felony prosecution under federal firearms law.  Any patient purchasing a firearm from a licensed firearms dealer is required to execute ATF Form 4473 which, as will be discussed below, does not acknowledge medical cannabis.

Does Pennsylvania law prohibit a registered Pennsylvania patient from owning a firearm?

No.  Pennsylvania’s medical cannabis law is silent on the issue of firearm possession.  Title 18, section 6105 of the Pennsylvania Criminal Code sets forth that certain persons may not possess a firearm.  Section 6105 requires a criminal conviction.  Simple possession does not trigger the prohibitions under section 6105 unless the individual has a prior drug possession conviction.  The majority of the offenses that are set forth in section 6105 are felony level offenses.  Certain misdemeanors are also included such as second or subsequent drug possession conviction, Prohibited Offensive Weapon, Corruption of the Morals of a Minor and three or more DUI convictions.  A person subject to a Protection From Abuse order or an individual with a prior mental health commitment is also prohibited.

Does Federal law prohibit a registered Pennsylvania patient from owning a firearm?

Yes.  Title 18, section 922(g)(3) of the United States Code prohibits any individual who is an unlawful user of controlled substances from possessing a firearm.  Cannabis remains a Schedule I controlled substance and the DEA and ATF have made clear that federal law does not recognize an exception for state medicinal cannabis patients.  A violation of section 922(g)(3) is a felony with a maximum period of incarceration of 10 years.  At present the Rohrbacher-Blumenaeur budget amendment prohibits the Department of Justice from using its Congressionally authorized budget to prosecute state cannabis programs.  Even if the amendment is not included in the final budget it is highly unlikely that the Department of Justice will utilize its limited resources to prosecute individual patients under this section unless the patient is otherwise involved in a more significant violation of federal law.

Can I apply for my Concealed Carry Permit/Must I surrender my Concealed Carry Permit?

No/No.  The right to carry a concealed firearm in Pennsylvania is regulated by Pennsylvania state law.  The authority to issue a Concealed Carry Permit is vested in the County Sheriff of the county in which the individual resides.  18 Pa.C.S.A. §6109 sets forth the process for a concealed carry application and the responsibilities of the County Sheriff in reviewing applications.

One of the criteria is whether the applicant is an “unlawful user of marijuana.”  A registered patient would be a lawful user of marijuana under PA law.  Section 6109(e)(xiv) however, acts as a “catch all” and prohibits issuing a concealed carry permit to anyone otherwise prohibited under federal law from possessing a firearm.  Since any user of cannabis, whether pursuant to state law or not, violates 18 U.S.C. §922(g)(3) an application for a concealed carry permit will be denied.

At the time of writing I am unaware of any mechanism to try and revoke concealed carry permits merely because a patient is registered with the Department of Health.

Can I purchase a firearm lawfully if I am a registered PA patient?

No.  Any firearm purchase from a federally licensed firearms dealer involves the execution of ATF Form 4473. In 2016 the ATF modified the form to include the following language in question 11(e):

“Are you an unlawful user of, or addicted to, marijuana or any other depressant, stimulant, narcotic drug, or any other controlled substance?  Warning:  the use or possession of marijuana remains unlawful under federal law regardless or whether it has been legalized or decriminalized for medicinal or recreational purposes in the state where you reside.”  (Emphasis in original).

If a registered patient answers this truthfully the sale will be denied after a Pennsylvania State Police review of the form.  If the patient lies on the form in order to purchase the firearm the patient risks felony prosecution by the Pennsylvania State Police.

An ATF Form 4473 is not required for the purchase of a rifle or shotgun, but a patient would nonetheless be considered a prohibited person.

A recent Ninth Circuit case addressed the issue of an Arizona patient attempting to purchase a firearm.  The licensed firearm dealer knew the individual was a medical cannabis patient and denied the sale.  The issue went before the federal appellate court and the court held that the Second Amendment does not protect the patient where cannabis remains a Schedule I controlled substance under federal law.  The Ninth Circuit is not law here in the Third Circuit, but I do not anticipate a holding from out Court of Appeals that would grant Second Amendment rights without a change in federal law.

Unfortunately, federal law does not appear to be on the side of Pennsylvania patients.  A patient who owns firearms and/or possesses a concealed carry permit is unaffected by Pennsylvania state law but can easily run afoul of federal law if making a new firearms purchase.

For more information please contact Patrick K. Nightingale of Cannabis Legal Solutions at Patrick@cannabislegalsolutions.net

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Vinni BelfioreMedical Cannabis and the Second Amendment – What are a patient’s firearms rights?
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“Well Regulated” Means Exactly What It Says.

gun crimesBefore I go any further, let me state unequivocally that I support the Second Amendment and the right to bear arms.

Despite the fact that people think of America as the murder capitol of the world, the facts do not bear this out. The good ole’ USA is not even in the top ten when it comes to per capita homicides (# of homicides per 100,000 people). In fact, we are not even in the top 100. We come in at #111.

If one removes cities like Detroit, New Orleans, Baltimore, St. Louis and Chicago from the equation– all cities with the toughest gun restriction laws in the nation– the USA falls to #211 in terms of per capita homicides.

The American city with the fewest per capita homicides?

Plano, Texas. The very heart of “gun nut country”.

The term ‘gun nut’ is a terrible insult to law abiding citizens who behave responsibly when it comes to firearms. It’s like saying everyone who drinks is an alcoholic.

But, what happens when an irresponsible person has a gun?

I’m not talking about a mentally ill person on a shooting spree, but an otherwise “normal” person who has received a concealed carry permit for a gun, yet clearly doesn’t respect that right and worse, has little or no training in the safe and responsible use of that weapon.

We saw just such an example of what can happen this week when a 46 year old woman decided to play vigilante at a Home Depot in Michigan.

A man was seen leaving the store with a shopping cart full of power tools, worth around $1000. He was pursued by the store security officer, but made it to a waiting SUV, unloaded the cart and jumped in to make his getaway.

It was at this point that the woman–herself an innocent bystander– decided to draw her weapon and open fire on the departing SUV.

Let’s be clear about this. The thief did not make any threatening gestures and was not armed– no lives were in danger at all. Yet this woman, completely of her own volition, simply decided to play cop, drew her weapon and opened fire in a crowded parking lot with absolutely no regard for the lives of innocent bystanders.

All over shoplifting.

No police officer worth their badge would do that.

We’re talking about a misdemeanor crime, yet this woman apparently felt that Home Depot should have the right to summarily execute shoplifters.

This is hardly a ‘well regulated’ situation.

Licensed gun safety instructors have been unanimous in their response. This woman clearly lacks any training, or if she had training, completely ignored it and the very first rule of drawing a weapon: Lives are threatened.

This has long been the position of the NRA (National Rifle Association). Proper safety training for gun owners. It’s a sound position, akin to getting a drivers license.

An automobile can certainly be used as a ‘deadly weapon’. It’s several thousand pounds of steel hurtling down the road. Even if it’s unintentional, an automobile in the wrong hands can be a death sentence for an innocent bystander. This is why, in order to operate an automobile, one must obtain a license. In that process, physical/mental health, along with proper training, are two of the key components in determining whether or not someone is capable of driving responsibly.

If the NRA truly believes in their own stated positions regarding gun safety and proper training, they should be the very first group in line condemning this woman’s actions as being totally irresponsible. What she did completely goes against everything the NRA stands for.

I do a lot of driving in my work, going from county to county, and I really like to think the state of Pennsylvania is not handing out drivers licenses willy nilly to just anyone who thinks driving is their right. The fact is, you have the right to buy as many cars as you wish, but you must be licensed and trained to properly operate a car before you’re allowed to drive.

The same should be true of guns. It’s not about how many or what kind, it’s about responsible gun ownership. The NRA does considerable damage to their cause by not publicly embracing their own position on the subject.

The Second Amendment includes the words, “Well regulated”, and I believe that means, in modern parlance, properly trained and licensed in the use of fire arms.

As for the woman in Michigan, she has yet (at the time of this writing) to be charged with a crime, even though discharging a weapon in public recklessly and endangering innocent lives is in fact a crime, regardless of why she thought it was okay. She should be charged and held up by both sides in the gun debate as an example of why proper training and safety courses should be mandatory in gun ownership.

It’s time we start talking about this– not yelling at each other– in order to truly have a meaningful and realistic conversation about responsible gun ownership.

Opening fire in a crowded store parking lot over a misdemeanor shoplifting charge hardly qualifies as as “well regulated”.

 

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Patrick Nightingale“Well Regulated” Means Exactly What It Says.
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Chipping Away at the Bill of Rights

Courtroom Defense AttorneyYou no doubt have heard the cries of, “They’re taking away our freedoms!” by this or that politician or group. For years now, we’ve heard President Obama is coming for our guns, yet there has been absolutely no significant action taken by the Federal Government in pursuit of that goal.

The President can say he wants stricter gun control, but that is something easier said than done.

For starters, it’s the second amendment to the Constitution, and it is pretty clear. The right of the people to keep and bear arms shall not be infringed. There is also a clause there– the words, “well-regulated” are present. What exactly does well regulated mean? It certainly doesn’t mean, the government gets to have and hold all the guns till it deems the citizens need them.

Most people try to apply some common sense to that clause, meaning, I don’t think it’s a good idea for the average person to own a flame thrower, grenade launcher or RPG. There’s a point where you’re not talking about home defense. You’re talking about primarily offensive weapons of mass destruction, which require special training, handling and storage, that goes far beyond what an ordinary hand gun or rifle requires. And let’s face it, if you honestly believe you need an RPG for home defense, you might be living in the Gaza strip or Syria, not America.

But those who want more gun control need to hear what they’re saying, and be realistic about their goals, because once it’s okay to take away one constitutional protection, it’s only a matter of time before the others begin to fall.

Responsible gun owners are not criminals, nor should they be treated as such. They are protected by the second amendment. Responsible gun owners understand the ‘well-regulated’ clause is there to prevent a foreign government from setting up shop in the guise of a private citizen– arming private citizens with military grade weapons, and pretending to be just an ordinary citizen exercising their rights.

I certainly don’t want to lose my car because of irresponsible citizens who drive drunk and cause deaths. I will defend them in court to the best of my ability, and I want to be able to drive to the courthouse to do it.

In the same way, many folks, especially those who live in high crime areas, or a rural setting where police response times might be longer than we hope, don’t want to risk their entire family being murdered in a home invasion because the police didn’t arrive in time.  They deserve the right to be able to defend themselves. And the majority of police will agree. They will tell you, they cannot be everywhere at once. Citizens cannot count on them to arrive in the nick of time, every time, and save them.

And yes, I understand the abuse of gun ownership rights has resulted in tragedies like the one we have just witnessed in Charleston, SC. But that doesn’t mean an innocent family of four should be allowed to die with no chance to defend themselves in a home invasion, either.

Unless you think a policeman should be standing on every corner, on every floor of every building, stationed at every apartment complex, bank, school, church, mall, movie theater, and convenience store, there is no way to assure the safety of those who are the innocent victims of crime. And would you really want to live in a virtual police state like that? That’s hardly what the writers of the Constitution envisioned for America.

We have recently seen a level of zealousness and over-reach with regard to gun ownership, on both sides. There is no doubt we need to take a serious and well-considered look at how we observe the ‘well-regulated’ clause, but taking away the right to bear arms is an over simplification of a much larger issue. Yes, in a perfect world, there would be no guns and no need for them, but we don’t live in a perfect world. We live in a world full of crime, hate, racism and a host of other wrongs that occur every single day, despite the intentions, and efforts, of those trying to prevent them.

Most gun related crimes are not in fact committed with legally purchased and registered weapons. They are illegal guns, and no amount of laws can prevent people from obtaining illegal guns. Cities like Chicago, which has the toughest gun laws in the country, also have the highest rates of gun violence. Criminals, for the most part, do not buy weapons at Walmart. They get them from other criminals, and none of them will respect the new laws any more than the current ones.

It is the family of four who will pay the price.

More important still, by chipping away at a cherry picked selection of rights we have guaranteed by the Constitution, we collectively weaken all those rights. We have already seen official attacks on free speech, the ability to record police encounters and the right to assemble. We see the government being called into account for unwarranted surveillance, after broadly interpreting the NDAA as meaning, well, everyone is a potential terrorist. We see phone calls being tracked and monitored by government agencies without a shred of evidence to suggest a crime has been committed.  There are numerous instances of government over-reach in areas like property seizures, where the weakening of the right to a fair trial through forfeiture laws has resulted in the asset forfeiture of completely innocent people who in many cases, are never even brought to trial.

To this day, no one is completely certain what the Patriot Act actually means, and how it can be legally and constitutionally applied evenly in cases where someone is accused of ‘terrorist acts’. It doesn’t even clearly define what constitutes “terrorism”. Such vagaries very often lead to abuse of the law.

As a defense attorney, it bothers me because I know that even the slightest loss of the rights guaranteed in the Bill of Rights and the Constitution can have a profound, lasting effect in a court of law, that goes far beyond the original stated good intentions. It can ultimately lead to the proverbial slippery slope of losing all our freedoms.

No innocent, law abiding person should have their rights stripped to theoretically protect another who is not actually in a situation of a real and present danger. That is not justice. That is fear and paranoia.

 

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Patrick NightingaleChipping Away at the Bill of Rights
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Gun Crimes of the Layman

When most people need a gun crimes attorney, it’s because of accusations related to some type of violent offense such as a robbery or assault. However, many seemingly law-abiding laypeople are charged with gun crimes each year for offenses they might not have known they were committing. Understanding what type of gun crimes you could be inadvertently charged with is critical to protecting your rights and maintaining your good name as a gun owner. The following are 4 categories of gun crimes that are generally non-violent and could happen to an under-educated gun owner.

1.) Unlawful Discharge

With hunting being a popular sport all across Pennsylvania, it can sometimes happen that a hunter accidentally wanders into a no-discharge zone and fires their weapon. Understanding your precise location at all times is important because this type of incident can result in serious charges against you – especially if you’ve wandered into a school or other protected zone.

2.) Unlawful Carry

Even a concealed carry permit doesn’t allow you to carry your weapon everywhere. School zones, public buildings, national parks and many other places bar the presence of weapons entirely. Violating one of these laws can land you in hot water, and ignorance of the law is no plea in the courtroom.

3.) Possession

Possession charges have different levels of categorization, each with different sets of penalties. You can be charged with possession for having a gun in the wrong place, for possessing a gun and being previously convicted of any felony, for previous serious psychiatric treatment or incarceration, for domestic violence, court orders, related drug charges, etc., all involving possession of a gun.

4.) Excessive Force / Brandishing

Although not too common, sometimes charges for excessive force or brandishing can be the result of well-intentioned efforts. For instance, a homeowner may think they have a right to shoot someone who is stealing something from their yard, or brandish a weapon to “scare someone off.” While each state has its own set of laws, your rights to possess and discharge a firearm are strictly regulated and any accusation of an offense will likely be investigated and prosecuted aggressively if you’ve done something wrong.

If you’re facing gun crimes charges, you need to take action immediately to ensure the best results possible. It’s the prosecutor’s job to be certain you are charged with the most severe relevant crime possible, regardless of your intentions – and in many cases regardless of any mitigating circumstances. Consequently you need a gun crimes defense attorney who can keep the wolves at bay, mount a compelling defense and create a favorable outcome for your case.

Penalties for gun crimes can include steep fines, community service, incarceration, and loss of some types of insurances and certifications. Additionally, if the crime you’re charged with is a felony, you could forever lose your rights to own a gun.

At PKN Law, we once sat in the prosecutor’s chair, so we’re fully adept at anticipating actions and preemptively delivering powerful and timely responses. Let us come to your defense if you’ve been charged with a gun crime in Pennsylvania; mounting a good defense is as simple as a free consultation, so call the number at the top of your screen now.

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Patrick NightingaleGun Crimes of the Layman
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