Episode 10: Bang or Bong: How New Marijuana Laws

Will Strip You of Your Gun Rights

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Gun Lawyer Season 1 Episode 10 – Transcript


marijuana, gun rights, gun, new hampshire, dog, coyotes, shooting, case, problem, medical marijuana card, lawyer, gun owner, client, law, legalized, user, federal law, legal, firearms, people


Evan Nappen, Speaker 3

Evan Nappen  00:19

I’m Evan Nappen, and welcome to Gun Lawyer. Hey, today I want to talk to you about marijuana and guns. That’s right, marijuana and guns. What about weed and those things we love so much that go bang? Well, I’ll tell you. There’s a phrase that I actually coined. Honestly, it was me. I coined this a number of years ago. When talking about marijuana and guns, what I said was, “bang or bong, you can’t have both”.

Evan Nappen  00:56

That’s exactly what the story still is today. But I want to explain to you why in more detail because a number of states have legalized marijuana even for recreational purposes. New Jersey just legalized it for recreational use, as they like to call it. There’s been many states that have medical marijuana and issue the so-called “weed card”. As marijuana has become more legal across the country, for both medicinal and recreational use, my concern isn’t about entering the debate of whether marijuana should be legal or not. I’m not even going to take a position on that. It’s not something that’s personally of interest to me. But what is of great interest to me, is how it can affect gun rights of individuals. That’s where it’s very important for you to be knowledgeable about the impact, because a lot of folks really find it hard to believe that something that is sanctioned and lawful by the State, still screws you out of your gun rights at the Federal level. So, if for example, you have a weed card, a medical marijuana card, then that means you are approved by the government to use marijuana, Cannabis, etc. for whatever medical condition that card was issued.

Evan Nappen  02:39

Now, a lot of folks say, “Well, hey, the state that I live in, says I’m good to go to have marijuana.” It’s legal. Why would that be a problem for my gun rights? Well, that’s because of how the Federal law works versus the State law. Federal law has a prohibitor for individuals who are users of drugs. Under Federal law, it prohibits any person who is an unlawful user of or addicted to any controlled, dangerous substance defined in the Controlled Dangerous Substance Act. It’s Title 18 § 922 (g) (3), if any of you are interested in looking it up. So, marijuana is in the Control Dangerous Substance Act. Therefore, if you are a user of that, it is illegal under Federal law. You are a prohibited person and cannot own, possess, or acquire firearms, and ammunition for that matter. You are prohibited for both things, firearms and ammunition.

Evan Nappen  04:01

Even though the State gives you permission legally to do it, that doesn’t remove you from the Federal disqualifier. As a matter of fact, the State’s permission for you to use marijuana does the opposite. It actually confirms legally that you are a user and confirms your disqualifier for gun possession. So, it does the exact opposite. It doesn’t make it legal for you to own guns. It absolutely makes it clear that it’s illegal for you to have firearms under the Federal law. So, don’t be fooled by that. Now, the medical marijuana card is used by many people legitimately and righteously for ailments that marijuana absolutely helps, and I get that. However, there are some people out there who have the marijuana medical card that are taking advantage of it and really are not using it exactly for the medical purposes that it was intended.

Evan Nappen  05:18

This is where history repeats itself. And that’s because of an interesting thing I want to tell you. I was down in Kentucky for an NRA convention, and I decided to check out the “Bourbon Trail” as they call it in Kentucky, where these fine Bourbons are made. I went into a great facility there, and it was the Buffalo Trace facility. And I know, this is alcohol, you say, how does this relate to me, but I’m going to explain exactly how because it was really fascinating. Buffalo Trace, which by the way, is a delicious bourbon, and I’m not being paid by Buffalo Trace to say that, but it is really great. We went through the whole plant there, and it really was amazing in how they do everything.

Evan Nappen  06:18

One of the things that was really fascinating is it ends up that the Buffalo Trace distillery was one of four whiskey makers that were allowed to operate during Prohibition. They are one of the oldest that still exists in the country. I remember asking the guy, “Well, how did they operate during Prohibition?” He said, “Well, the government, the Federal government, allowed four whiskey bourbon makers to stay in business, and they allowed four wineries.” Do you know why they allowed the wineries? Well, that was for the religious folks. They needed wine for the ceremonies. So, they were still allowed to have that. But the reason that the bourbon makers were allowed was for “medicinal purposes”. That was the basis, and to this day, you can buy hard liquors in every drugstore and pharmacy in Kentucky because that’s how you would acquire it.  Because it was for medicinal purposes, they still sell it in the drugstores today. I remember looking at the wall in the Buffalo Trace distillery, and they had a doctor’s prescription to a patient from the Prohibition era. Basically, the prescription prescribed this woman, three Mint Juleps a day. She was prescribed it, and they had that up there. I immediately said, “medical marijuana, medical bourbon”, it’s like the same thing all over again.

Evan Nappen  07:58

So, I get it, and I know it’s out there. Whatever your choice, be aware of its impact on your gun rights. If you’re a user of marijuana, even recreationally, illegally or legally, it’s a prohibitor. If you have had a minor arrest, even for possession of a small amount, there’s a rule of thumb out there. Even though it’s not a felony but it is for drugs, they’re going to get denied on a NICS check for up to a year from that, even though it’s strictly possession. Now, remember, just because you possess marijuana, doesn’t mean you use marijuana. There are plenty of folks that have possessed marijuana that never use marijuana. Maybe they possessed it for somebody else. Maybe they didn’t even realize they had it hanging around and hadn’t used it for years, but it doesn’t matter. They view the possession offense in the same category. So, you’ve got to be careful about that.

Evan Nappen  09:06

Additionally, Federal firearms dealers have a special obligation because ATF warns dealers that even if you write “No” on the 4473 Form, but the dealer knows that you have a medical marijuana card (weed card), he has to refuse to sell to you. Then additionally, you’ve lied on the form. You can be prosecuted for that. Even if he doesn’t know, but he has reasonable cause to believe, that you are a user of marijuana or other drugs. If the dealer has that reasonable cause to believe, he cannot sell you the gun. He cannot sell it to you even though you may get approved on the NICS check.

Evan Nappen  09:54

So, this is important to keep in mind. This is a way to lose your Second Amendment rights because of marijuana. As it becomes legal in more places, it can set a trap for the unsuspecting gun owner who thinks “Hey, marijuana is now legal. Maybe I’ll try it.” You decide to go to a dispensary to try it, and you may very well burn yourself right out of your gun rights for doing it. So, this trap is something gun owners need to be aware of. It’s a choice – banger bomb – it truly is a choice. As long as you recognize that you have to make that choice, then okay. But if you don’t know it, and you use these newly legalized substances, then you can get yourself in serious trouble.

Evan Nappen  10:49

Now, the interesting thing about legalization though, is it does have some positive effects for gun owners and gun rights. As a criminal defense attorney having defended hundreds and hundreds of folks with gun issues, I found that there can be an abuse of the system. We call it abuse, or at least taking advantage, of the fact that marijuana is prohibited. I’ve seen this used for searches. If they think that you possess marijuana, they can search and then find guns. I’ve seen vehicles pulled over, and the Officer thinks they smell marijuana. Not even that it’s being smoked, but claim to actually smell marijuana itself, and it doesn’t mean it’s being used. Yet, that has become a basis that leads to a search. Then guns are found, and individuals get charged. Then they have to deal with the entire gun law issue that came about because of “smelling marijuana”. I see this happen, even when there’s no marijuana found, but they “smelled marijuana”. So, there was a search that took place, and now that facilitated the search. With marijuana legal, I would hope that we’d see less searches, less invasion of privacy, at least based on the excuse of “smelling marijuana” because it won’t matter if it’s legal.  So, what if you smelled it and that should hopefully undercut it. But this is critical because it ends up bringing in the Fourth Amendment rights, as well as our Second Amendment rights and the right to have the privacy.

Evan Nappen  12:49

Additionally, because marijuana use is so common, if there’s a gun issue and a marijuana issue, then you’re painted in this picture of being a drug user and having a firearm. Of course, the Federal law would prohibit you anyway and here you are. Now you use your gun, let’s say in a self-defense situation. Then police come and a small amount of marijuana is found as well. Now, you’re kind of tainting your own case, your own claims. It can now be used. It’s arguably prejudicial, but it might still come into the case. So, by legalizing it, at least some of these issues I think will be addressed and will be less of a problem than they currently are. But let me just tell you until such time as the Federal law removes marijuana from the Controlled Substances List, it remains a Federal prohibitor.

Evan Nappen  13:59

If you are currently a holder of a medical marijuana card, the best thing to do, if you want your gun rights, would be to get rid of that card – surrender it, give it up, send it back, and make a note of it. Then generally there’s a one-year period where ATF is taking a position that if you haven’t had your marijuana card for over a year, you haven’t had a conviction for over a year for minor marijuana, then they view you outside of that year as not being a user. Now, this is a policy. I don’t know of it being actually anywhere in law or statute or reg. This is the view that they take. So essentially, you’re going to need a year from when you no longer have that card. That’s the rule of thumb that is generally followed. So, don’t go one toke over the line.

Speaker 3  15:08

For over 30 years, attorney Evan Nappen has seen what rotten laws do to good people. That’s why he’s dedicated his life to fighting for the rights of America’s gun owners. A fearsome courtroom litigator, fighting for rights, justice, and freedom. An unrelenting gun rights spokesman, tearing away at anti-gun propaganda to expose the truth. Author of six best-selling books on gun rights, including Nappen on Gun Law, a bright orange gun law Bible that sits atop the desk of virtually every lawyer, police chief, firearms dealer, and savvy gun owner. That’s what made Evan Nappen America’s Gun Lawyer. Gun laws are designed to make you a criminal. Don’t become the innocent victim of a vicious anti-gun legal system. This is the guy you want on your side. Keep his name and number in your wallet and hope you never have to use it. But if you live, work, or travel with a firearm, the deck is already stacked against you. You can find him on the web at EvanNappen.com or follow the link on the Gun.Lawyer resource page. Evan Nappen – America’s Gun Lawyer.


You’re listening to Gun Lawyer with Attorney Evan Nappen. Available wherever you get your favorite podcast.

Evan Nappen  16:39

Dogs. I want to talk about dogs. Why do I want to talk about dogs? Well, I recently got a new dog, a wonderful puppy. It is a puppy known as a Working American Pitbull. He’s got papers, and it’s really wonderful. Our family loves this new dog, and I love this new dog, too. But I found that sometimes when a dog is identified as a Pitbull, it gets some people nervous, but they’re great dogs. It’s all about how you raise it.

Evan Nappen  17:22

Anyway, I’m a dog lover, not a problem. I want to tell you about one of the first cases I ever had in New Hampshire, and it involved shooting a dog. Now, I know that’s rather unpleasant, and it is. But in this particular case, it was very interesting. You may know that I practice in both New Jersey and New Hampshire, and those two jurisdictions are just polar opposites in so many ways when it comes to guns. There’s just no question about it. People in New Hampshire want to know you know what’s it like in Jersey. I say,  “Well, think about everything that’s great about New Hampshire”. They go, “Yeah”.  I say, “Now think of the opposite. There you go. Now you know what New Jersey is. That pretty much sums it up. People in New Jersey ask me, “What’s it like in New Hampshire?” I tell them, “Think about everything you hate about New Jersey. Now imagine that all gone. That’s what it’s like in New Hampshire.” Okay. It’s simple to understand, especially when it comes to gun rights and the Second Amendment. It’s just night and day.

Evan Nappen  18:30

Anyway, I have a case with this fellow who gives me a call, and here’s what he was doing. He has his bedroom window open, and he is shooting coyotes out his bedroom window at three o’clock in the morning. He has a blue light out there where he has bait out. He’s just shooting coyotes out his bedroom window at three o’clock in the morning over bait and a light. It’s perfectly legal, not a problem. In New Hampshire, if you want to shoot coyotes from your bedroom, go right ahead. It’s New Hampshire, not a problem. Coyotes are a problem. They are destructive. They run down deer and cause all kinds of problems. They make neighborhood cats disappear. The thing is that he’s legitimately shooting coyotes. He would shoot the coyote. It would fall down dead, and he’d leave it there. He wasn’t going out there at three o’clock in the morning because, guess what, that coyote now attracted more coyotes. It’s more bait for coyotes.

Evan Nappen  19:41

He would just do this during the evening. He would just blast away. Okay, fine. Well, next morning, bam bam bam, there is pounding on the door. There’s a woman there, and she’s holding her dead dog. She’s flipping out. “You shot my dog. You killed my dog”. And he’s like, “Oh, I’m really sorry. I didn’t want to shoot your dog. I didn’t know. I was just shooting coyotes out there at three o’clock in the morning. It looked like another coyote out there.” He’s very apologetic. He didn’t want to shoot anybody’s dog. He wasn’t happy about doing that. But she is just beyond consolation . She’s just going on, and on, and on. So, she calls the police. The local police come. She’s like, “he shot my dog.” What happened? He was shooting coyotes, over the bait which he is allowed to do. That what he’s doing. Apparently, your dog decided that night to run with the homeboys. He didn’t know, and he shot it. He is sorry, but he didn’t know. The officer says, “Lady, do you know how many times we’ve told you not to let your dog run loose. I mean, dozen times, your dog is not allowed to run loose. He ran loose. He got shot. Oh well, have a nice day.” The cops leave. Just like in New Jersey, right? Yeah, right. Just a joke. But so okay, that’s what it is, and he was sorry.

Evan Nappen  21:20

But guess what? She’s not to be blocked by this local who won’t take action. She calls New Hampshire Fish & Game. A Fish & Game Officer comes there over what happened. As far as Fish & Game laws were concerned, my client wasn’t in violation of any of those Fish and Game laws. But a new law had recently been enacted. The new law was if you ever shot a dog by accident, you had to report that the dog was shot. You had to report it. He did report it, and the local police did come, remember? But no, that wasn’t the kind of reporting they were talking about here. So, this guy with this lady, is going to be her white knight. He charges my guy with violating the new dog shooting law that New Hampshire passed. So, this is the first case.  I look at it, and do you know what? This new law is ridiculously unconstitutional, because it’s requiring you basically to incriminate yourself. All right. I mean, that sure doesn’t fly anyway. On top of it, he did report anyway, and that’s still not being accepted. So, they took my guy’s gun to hold that did the dog shooting.

Evan Nappen  22:49

We finally get scheduled for court. And you know, the way it works by the time court rolled around, you figure it takes a bit of time. I get there to court, go in, and talk to the Fish & Game Officer.  At this point, he’s pretty much sick of this lady, who has been nonstop on him about this case, and he realized that I had filed motions. I filed a Fifth Amendment (self-incrimination) motion, and motions on the whole case all this kind of stuff. I learned that the Fish & Game Officers in New Hampshire prosecute their own cases. So, it’s not like they have a Municipal Prosecutor who’s an attorney that knows how to respond to these motions and deal with all this. So, now it’s like great. I get to deal with this Fish & Game Officer, and that’s always worse because he has no clue. It was at this point where he realized I had all these arguments, all this file, and I’m not going to let this go by. This has to go. The guy says to me, “Look, how about we do this thing called Placed on File”. Now, this is what New Hampshire offers. If a case is agreed to be, “Placed on File”, it means that there’s no plea of guilt that’s made, there’s no conviction, there’s no jail sentences, no fine, nothing. It’s basically saying that the court is going to hold the case for a period of time normally, maybe in this case, six months. If there’s no other problems with my client, they will dismiss the case, end of story, dismiss the case. So it’s kind of a surefire way, if you’re patient, just to get a case dismissed. We could have tried it. I could have argued all my motions. We could have had a lot of fun. But the best thing for the client was a Place on File and after the six months, it goes away. His concern was what about my gun? So I said to the Officer, “Look, I want his gun to come back”, and he says “no problem”. He can pick it up, and here’s how to get it. We’ll return his gun, place it on file, matter resolved, we’re all good. My client is very happy with that. “It’s good to get my gun, it’ll be dismissed, and that’s that”. It won’t count as a violation because New Hampshire is pretty tough on Fish & Game violations. Believe it or not, if you get one violation, you lose your hunting and fishing rights. You lose it for one problem. Even New Jersey allows you two problems before they suspend you. But in New Hampshire now it’s one. So, none of that would happen. None of that would be a problem. So, it was all good.

Evan Nappen  25:53

I walked out of the courthouse with my client, and we walked down the courthouse steps. We’re standing there for a minute, and I’m explaining to him how he can get his gun back. Here’s where he needs to go, and this is what you need to do. Suddenly, the courthouse doors fly open. The woman is up there and she’s holding half a dozen pictures of the dog in both hands. She’s screaming at the top of the courthouse steps.  “You killed my dog. You killed my dog.” She was obviously not happy with the deal we made, I guess. She comes running down the steps, and she starts punching my client with her Fist of Fury, holding her deceased dog pictures in her hands. My client trips over his own feet, backwards from her hitting him, and he lands on the ground. I tried to take my best command voice, and I say to her “Stop that. Stop hitting my client.” She turns and looks at me. She points those fists of pictures at me, and she says “And you, his motherfucking, fat attorney.” At which time I said to her, “How dare you call me an attorney.” Let me just say, I never forgot my first case in New Hampshire.

Evan Nappen  27:28

Let me tell you folks. Keep a fellow gun owner from becoming a law-abiding criminal. Tell them to listen to Gun Lawyer radio. We have a lot of laughs. We have a lot of fun, and you get to learn a lot, too. Visit our website at Gun.Lawyer. Please subscribe and rate the show. Help me get the word out. So we get more folks that can be protected and understand these issues so they remain law-abiding gun owners. This is Evan Nappen, reminding you, Gun laws don’t protect honest citizens from criminals. They protect criminals from honest citizens.


Gun Lawyer is a CounterThink Media production. The music used in this broadcast was managed by Cosmo Music, New York, New York. Reach us by emailing Evan@gun.lawyer. The information and opinions in this broadcast do not constitute legal advice. Consult a licensed attorney in your state.

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About The Host

Evan Nappan, Esq.

Known as “America’s Gun Lawyer,” Evan Nappen is above all a tireless defender of justice. Author of eight bestselling books and countless articles on firearms, knives, and weapons history and the law, a certified Firearms Instructor, and avid weapons collector and historian with a vast collection that spans almost five decades — it’s no wonder he’s become the trusted, go-to expert for local, industry and national media outlets.

Regularly called on by radio, television and online news media for his commentary and expertise on breaking news Evan has appeared countless shows including Fox News – Judge Jeanine, CNN – Lou Dobbs, Court TV, Real Talk on WOR, It’s Your Call with Lyn Doyle, Tom Gresham’s Gun Talk, and Cam & Company/NRA News.

As a creative arts consultant, he also lends his weapons law and historical expertise to an elite, discerning cadre of movie and television producers and directors, and novelists.

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