The other night there was a shooting across the street from my apartment: two people seriously injured. The shooter is supposedly a dealer.
My understanding is that owning a gun and possessing illegal drugs is a violation of federal law even if the gun and the drugs are in separate locations, e.g. drugs in the car trunk, gun at home. A friend said no, it’s only illegal at the federal level to possess a gun in the same location illegal drugs are found, e.g. guns and drugs both in car.
I looked up the federal law, but it wasn’t clear about the location of guns relative to the location of drugs. Furthermore, it didn’t refer to possession but only to someone “who is an unlawful user of or addicted to any controlled substance” as barred from possessing guns. 18 U.S.C. § 922(g)(3).
My questions:
1.Is it a violation of federal law to possess a firearm that’s in a separate location from the illegal drugs one possesses? If so, how separate do they have to be?
If a person has a huge stash of heroin in his possession but does not do heroin himself and isn’t an addict, is it a violation of federal law for him to own a firearm?
I am of course referring to legality at time of arrest for the illegal drugs; obviously a felon can’t own a gun.
I hasten to add I don’t possess any firearms and don’t use illegal drugs. I’m just curious–and hoping my trigger-happy neighbor will be sent away for a very long time, once he’s apprehended.
18 U.S.C. § 922(g) gives a list of people who are not permitted to “ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” In other words, if you’re on the list and you carry either bullets or a gun while engaged in interstate commerce, then you’re breaking the law. But just sitting in your house getting high while holding a loaded gun is NOT interstate commerce, so 922(g) wouldn’t apply.
OTOH, the interstate commerce clause was once stretched so far as to apply to people growing wheat in their own back yard garden, on the theory that doing so affected the demand for wheat and thus affected the price of wheat, which affected interstate commerce. And the Fair Labor Standards Act says your employer has to pay you minimum wage if the company sells anything or buys anything across a state line, which is basically everybody.
FWIW, the list of who’s not allowed to carry bullets or guns during interstate commerce is (paraphrasing)…
convicts (with >1 year sentence)
fugitives
drug addicts
people who are insane
undocumented immigrants
dishonorably discharged military
former US citizens who renounced their citizenship
stalkers served restraining orders
domestic abusers
ISTM this law would have been struck down as too broad if it said those people aren’t allowed to ever carry a firearm, so they narrowed it down and said only when engaged in interstate commerce. If your neighbor has a job, it’s probably illegal for him to carry a firearm to work. That would include self-employment, BTW.
EDIT: Dang, I just realized they could possibly get him for the gun itself if the gun or the bullets were shipped across a state line when he bought them.
I was just about to post a thread about something going around Facebook that claims that if you are issued a medical marijuana card you cannot legally own firearms, and I wondered if that was possibly true?
That’s a good question, but I don’t have the answer. I can answer that if you use marijuana, whether recreational or medically, you cannot legally purchase a gun. The federal form you fill out has the following question (with the “warning” part added recently): “Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug or any other controlled substance? Warning: The use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medicinal or recreational purposes in the state where you reside.”
The “warning” part was added recently.
There seems to be conflicting information on the internet (imagine that), but if there is evidence of marijuana use within the past 12 months, you have to answer this question “no” and cannot buy a gun.
I can’t find definitive answers regarding possession of a gun, rather than purchase.
Yes, technically that’s true. The 4473 form that’s required for purchase from an FFL specifically asks if you are addicted to or are an unlawful user of drugs. A yes, will get you denied, while a no, if not true, is lying on a federal firm and can result in fines etc. The Feds are planning on reconciling medical MJ records into their database.
I think you’re right. The federal law about possessing a gun includes wording “to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce”. It would be exceedingly difficult to only own firearms and ammunition that were made inside your own state.
As for the OP’s specific questions:
It seems to me that the laws address use of illegal drugs, not possession. So if someone possesses drugs but doesn’t use them, I don’t see how that impacts the legal ability to own a gun. Having said that, good luck not having the prosecution argue that you are a drug dealer and use your gun as a tool in that illegal enterprise.
So let’s say Henry is caught with several ounces of heroin and a firearm. It’s a given he’s busted for heroin possession, but if he wants to avoid the federal 5-year-minimum sentence for firearm possession, he just has to claim he didn’t even know the heroin was there, or it belonged to his late gramma or something? That is, unless Henry is caught using, he’s off the hook on the gun charges?
I don’t doubt you’re right; I’m just trying to figure out how toothless the law is.
Why did you include the “federal 5-year-minimum sentence for firearm possession”? If Henry isn’t a “prohibited person” due to a previous felony conviction, domestic abuse, etc., why is he not allowed to possess a firearm? If it’s in his house, he’s allowed unless prohibited. If on the street, he’s allowed if he has a carry permit. Assume he really isn’t a user, and answered the drug use question honestly when he legally bought the gun.
Now, if he gets convicted of heroin possession and/or trafficking, then he would become a prohibited person as far as gun ownership goes.
Sorry I wasn’t clear. I was trying, in my confused way, to make sense of a federal law that says, as far as I understood, that being in possession of a firearm and illegal drugs is a violation of the law only if you’re USING the drug. Why not just lie and say you’re not using so you avoid the additional 5 year minimum sentence? And I was thinking of Henry getting stopped in a car, where whatever is in the car is considered in his possession, regardless of whether he was the legal owner or not.
But I found a US Dept. of Justice site that clarifies much of this and may help answer Czarcasm’s question. Bolding is mine.
nelliebly, you seem to have answered your own question but you might also want to recognize that states are usually prosecuting drug crimes rather than the federal government. Although you have a pretty good idea how the feds might prosecute your neighbor, you don’t know how your state would handle it.