The Smoking Gun | Marijuana and the Second Amendment | USCCA

I am frequently asked if a card for medical marijuana (MMJ/MMID) or cannabis bans someone from legally possessing and/or buying guns. Before we get into that, let’s touch on the history of marijuana and dispel some of the smoke and mirrors surrounding this plant and its derivatives.


This is a companion discussion topic for the original entry at https://www.usconcealedcarry.com/blog/the-smoking-gun/
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I don’t use THC, although I am legally able to here in Michigan. I did however, notice that in Michigan the law says you are able to use deadly force to defend your home if someone breaks in or is in the process of breaking in. Later in the same statue it says that if you are in the process of committing a crime you are not allowed to use deadly force. So my curiosity got the better of me and I was wonder If someone sold drugs THC included out of their home, would they be prevented from using deadly force in the event their home was broken into or any other circumstances that would require it? I realize a person is going to use deadly force if needed regardless of the law, I am just wondering if they would later be charged with manslaughter or murder because they also sold drugs or if that would only apply if they were in the process of selling drugs.

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A aggressive DA/ADA could go after a conviction like that. We had a case in Oneida County, NY just last year that had the home owner charged for being in possession of an illegal gun. He used the gun to stop two people who broke into his home. Anything is possible.

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Just as Bernhard Goetz was acquitted of all charges other than the illegal possession of a weapon charge.

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Marijuams has been legal for either medical or recreational states for so long now that I wonder if there is any case law that is applicable, either on the 4473 matter or in general?

One thing on the 4473 is that answering Yes to the drug question is self-incrimination. Many years ago I recall there were court rulings that this conflict (Yes is self-incrimination, No is perjury) was resolved in favor of the prohibition against self-incrimination. But I also know there have been more recent rulings on lying on the 4473 and don’t know how that impacted the self-incrimination defense.

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Actually, nothing in Michigan law says you can use deadly force if someone is breaking into your home. The law gives a “Rebuttable Presumption.” You must still have an honest and reasonable belief that deadly force is necessary and only used against an imminent threat of death, great bodily harm, or sexual assault. NOWHERE in Michigan does any statute or case law give the right to use deadly force for someone breaking in.

Case law in Michigan has set this standard. Drug dealers who are in the middle of dealing have been robbed and used deadly force. They later tried to use the Self Defense Act and claim self-defense. The appeals court has upheld those convictions because self-defense is not a legitimate defense when engaged in a crime (selling drugs). It usually ends up being 2nd degree or sometimes pled to manslaughter.

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I was referring to Michigans version of the Castle Doctrine Section 780.951
(a) The individual against whom deadly force or force other than deadly force is used is in the process of breaking and entering a dwelling or business premises or committing home invasion or has broken and entered a dwelling or business premises or committed home invasion and is still present in the dwelling or business premises, or is unlawfully attempting to remove another individual from a dwelling, business premises, or occupied vehicle against his or her will.

It was actually just a hypothetical question, to begin with. I just wondered if someone who sold marijuana out of their home but wasn’t in the process. Would they be legally allowed to defend themselves or would they end up getting convicted for killing someone? Marijuana is legal in Michigan but not federally. With all the people selling it these days it begs the question could they legally defend themselves.

Roger Thornton II

I know Michigan Castle Doctrine. What you quoted does not give blanket authority to shoot someone in your home. That presumption of deadly force is rebuttable. You must still have an honest and reasonable belief deadly force is necessary.

Rebuttable Presumption has long been confused with Castle Doctrine. They are not the same.

No reason the feds can’t bring charges since possessing M is still a crime.

Doc

Dr. Art Joslin

Research Law Clerk & Bailiff
for the Hon. Thomas D. Wilson
4th Circuit Court
Jackson, MI

Court Officer & Deputy Sherrif (Ret.)
(Judicial Enforcement)

Reserve Police Officer
Pinckney PD

Expert & Consulting Witness
Dynamics of Violent Encounters

Please excuse any spelling and/or grammatical errors as I am most likely dictating this email by voice.

Thank you for taking the time to answer. I have long known in Michigan you can’t shoot someone for simply breaking in your home. My question was just a hypothetical question related to the marijuana statute and how that would relate to defending your life in your home. My exact wording was obviously legally flawed but the question I think was actually answered weeks ago. I should have said if someone broke in to kill you rather than just a broad statement but it was hypothetical so I figured the original poster would get my meaning and she did. Benzie County Prosecutor Sara Swanson came out in August of 2018 and publicly let everyone know you can’t shoot someone just for being in your home. Of course, a lot of other factors would play into that but none of which had anything to do with what I was curious about.

In truth, I really am not concerned if someone selling marijuana out of there home illegally, could legally use self-defense. I just read the post and it made me curious. It is my goal to become a trainer here in Michigan, and I know the question would probably come up at some point. While I would never presume to give someone legal advice. It would be nice to let them know that it could cause them problems considering they are not even supposed to own a handgun if they use illegal drugs according to the ATF. The so-called grey area of legal in the state but not federally just raised my curiosity. Again I thank you for taking the time to respond.

In Illinois if you have a medical cannabis card you can own firearms, possess firearms, have a concealed carry lic, buy ammunition and buy firearms from private sales and make private sales to individuals.

The problem in Illinois is how cannabis is scheduled by the Federal classification and the FFL form. If the Feds change the Classification of cannabis in Illinois there is no longer a conflict.

I was actually able to get through and talk to a person in the division that handles the gun purchases , state employee, and they gave me this information. That being said I also understand that they could change their mind or practice. As of April of 2020 that was the information I was given.

Thank you. The Self Defense Act doesn’t state what kind of law to break (federal or state) to qualify for. It being able to use SD. Possession of marijuana is still a federal crime. I have seen any case law on that technicality and it would an interesting discussion.

If you are looking for instructor training, I teach MCRGO, NRA.

Doc

Dr. Art Joslin

Research Law Clerk & Bailiff
for the Hon. Thomas D. Wilson
4th Circuit Court
Jackson, MI

Court Officer & Deputy Sherrif (Ret.)
(Judicial Enforcement)

Reserve Police Officer
Pinckney PD

Expert & Consulting Witness
Dynamics of Violent Encounters

Please excuse any spelling and/or grammatical errors as I am most likely dictating this email by voice.

It is still violation of federal law to have a controlled substance and a gun.

Doc

Dr. Art Joslin

Research Law Clerk & Bailiff
for the Hon. Thomas D. Wilson
4th Circuit Court
Jackson, MI

Court Officer & Deputy Sherrif (Ret.)
(Judicial Enforcement)

Reserve Police Officer
Pinckney PD

Expert & Consulting Witness
Dynamics of Violent Encounters

Please excuse any spelling and/or grammatical errors as I am most likely dictating this email by voice.

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