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Monday, September 26, 2016

Guns, Weed, Bikers And Judges

Let’s start with guns.

The Second Amendment – the amendment immediately after the amendment that makes it legal for you to read these words – simply says “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”

For 152 years the point of the Second Amendment was understood to mean that power should legally reside with the people and, as Chairman Mao wrote in 1938, “political power grows out of the barrel of a gun.” In the United States the Second Amendment was understood to mean that individuals enjoy the right to be armed – with guns, switchblade knives, brass knuckles, cutlasses and so on – in order to defend themselves and their neighbors and as a last resort against tyranny. As recently as 1933, individuals could buy a Thompson sub-machine gun in a drug store. In 1934, Congress sought to discourage those sales with a tax authorized by the National Firearms Act.

In 1939, the Supreme Court disagreed with the traditional reading of the Second Amendment and ruled that the right to be armed was a “collective right.” What the collective right interpretation meant was that as long as the police are armed you do not need to be.

In 2008, by the narrowest of margins, the Supremes ruled that: “The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that firearm for traditionally lawful purposes, such as self-defense within the home.” So the right to bear arms became a limited individual right.

“Like most rights, the Second Amendment right is not unlimited,” the learned jurists opined. “It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Citing the 1939 decision of their forebears, five of nine justices decided it was lawful for the police unions lobby to bribe politicians to enact a law that “limits the type of weapon to which the right applies to those…in common use for lawful purposes.” So switchblades and sawed off shotguns were out but nobody could take away your right to own a little .38 or a bolt action 30.06.

Whether individuals should enjoy the right to be armed is a matter of continuing debate that falls along ideological lines.


Virginia colonists began growing hemp, by order of King James I, in 1619. George Washington grew hemp. The medicinal use of cannabis began no later than 1839. In 1854 the New York Times called cannabis “a fashionable narcotic.” By the 1880s there were numerous hashish parlors as well as opium dens in most American cities.

In general, the temperance movement frowned on all forms of intoxication and states began to regulate the sale of cannabis in about 1905. The regulation was not so much intended to specifically regulate cannabis use as much as to regulate medicines. If a tonic had marijuana in it, that ingredient had to be listed on the label. In 1914, New York passed a law that said cannabis could only be sold by prescription.

During the depression, small farmers began to complain that they were being driven out of business by large farms that employed Mexican field hands who smoked marijuana. Marijuana use was generally seen as un-patriotic and in 1937 the United States outlawed marijuana because Harry J. Anslinger, who was America’s first drug czar, argued, it was a “killer drug” that made its users violent, irrational and promiscuous – like the Mexicans.

Marijuana became legal again, with a prescription or a doctor’s recommendation, in California in 1996. It is probably reasonable to say that most, but hardly all, people who have a doctor’s recommendation for marijuana use the drug as a recreational intoxicant at least sometimes.

Currently 21 states and the District of Columbia have legalized “medical marijuana.” Four states, all in the West – Alaska, Washington, Oregon and Colorado – have legalized marijuana for use as a recreational intoxicant. All of those states and all of those users defy federal law. Under federal law, marijuana remains a so-called “Schedule 1 substance” without any legal medical use.

Under federal law, possession of marijuana, hashish or hashish oil is punishable by up to five years in prison and a $250,000 fine the first time they catch you. The penalties double if they have caught you with killer weed before.


Selective enforcement of the federal prohibition on marijuana possession and use has become a law enforcement tool in the war on motorcycle clubs.

For example, the racketeering indictment of 16 members of the Kingsmen Motorcycle Club this year is padded with marijuana charges. Seven of the 46 counts are federal marijuana offenses. Before the indictment was unsealed, a Kingsmen regional officer told The Aging Rebel, “We don’t condone drug use but we aren’t the party police.”

The Department of Justice thinks they should have been. Among the allegations in the indictment is “Kingsmen Motorcycle Club chapter clubhouses permitted illicit drug use and distribution, including cocaine, marijuana, and other controlled substances, between club members, associates, friends, and supporters of the Kingsmen Motorcycle Club.” The key word is “permitted.”

One Kingsmen, “did knowingly, intentionally and unlawfully possess with the intent to distribute, and distribute, a quantity of marijuana, a Schedule I controlled substance. All in violation of Title 21, United States Code, Sections 841(a)(1) and
841(b)(I)(D), and Title 18, United States Code, Section 2.”

A little more chilling is the grand jury charge that: “On or about August 26, 2015, in the Western District of New York, the defendant, Jack Wood, also known as Jake, also known as Snake, then being an unlawful user of a controlled substance as defined in Title 21, United States Code, Section 802, namely marijuana, a Schedule I controlled substance, unlawfully did knowingly possess…firearms.

The legal concept is fairly straightforward: If you smoke marijuana you forfeit your Second Amendment rights. You cannot legally possess a firearm. If you smoke marijuana and possess a firearm and you are a member of an indicted motorcycle club you may face 20 years in federal prison.


All of the above lends context to a ruling by the Ninth Circuit Court of Appeals, The Ninth Circuit has appellate jurisdiction over Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington. Alaska, Oregon and Washington permit the recreational use of marijuana. Arizona, California, Hawaii, Montana and Nevada allow the use of medical marijuana. The Ninth Circuit has jurisdiction over federal case in nine states. Eight of those states allow residents to ingest marijuana.

Last month the Ninth Circuit, in an appeal brought by a Nevada woman named S. Rowan Wilson against United States Attorney General Loretta E. Lynch and officials of the Bureau of Alcohol, Tobacco, Firearms and Explosives, ruled that if you smoke marijuana, or even if you threaten to smoke marijuana, you cannot legally purchase a gun. The court also reaffirmed a 2011 Ninth Circuit ruling, United States v. Dugan, “which held that the Second Amendment does not protect the rights of unlawful drug users to bear arms.”

Nevada law requires medical marijuana users to register with the state. Rowan had argued that she registered with the state as a political statement in favor of cannabis legalization but that she never actually used the substance. The ATF, meanwhile, had told Nevada gun dealers not to sell guns to anyone whose name appeared in the registry. The letter read, in part: “Any person who uses or is addicted to marijuana, regardless of whether his or her State has passed legislation authorizing marijuana use for medicinal purposes, is an unlawful user of or addicted to a controlled substance, and is prohibited by Federal law from possessing firearms or ammunition.”

When Rowan was denied the right to buy a gun for self-defense she sued. A lower court ruled against her and the Ninth agreed.

“As we recently observed” the learned justices began to quote themselves, “The Controlled Substances Act prohibits the manufacture, distribution, and possession of marijuana. Anyone in any state who possesses, distributes, or manufactures marijuana for medical or recreational purposes (or attempts or conspires to do so) is committing a federal crime.”

“Studies and surveys relied on in similar cases suggest a significant link between drug use, including marijuana use, and violence,” the court continued. “Moreover, legislative determinations also support the link between drug use and violence. In particular, Congress enacted” the law “which bars unlawful drug users from possessing firearms, ‘to keep firearms out of the hands of presumptively risky people.’ It is beyond dispute that illegal drug users, including marijuana users, are likely as a consequence of that use to experience altered or impaired mental states that affect their judgment and that can lead to irrational or unpredictable behavior. They are also more likely to have negative interactions with law enforcement officers because they engage in criminal activity. Finally, they frequently make their purchases through black market sources who themselves frequently resort to violence. It may be argued that medical marijuana users are less likely to commit violent crimes, as they often suffer from debilitating illnesses, for which marijuana may be an effective palliative. They also may be less likely than other illegal drug users to interact with law enforcement officers or make purchases through illicit channels. But those hypotheses are not sufficient to overcome Congress’s reasonable conclusion that the use of such drugs raises the risk of irrational or unpredictable behavior with which gun use should not be associated.”

Heads up. Watch your six.