Colorado was the first state to legalize recreational marijuana sales. Now the state’s voters may consider a ballot measure to allow cannibis smokers to carry concealed firearms.
The ‘‘Colorado Campaign for Equal Gun Rights’’ is working to put a question on the November 2016 ballot to have Colorado ignore guidelines from the Bureau of Alcohol, Tobacco, Firearms and Explosives about firearms and marijuana.
The measure would change state law to prevent sheriffs from denying concealed carry permits because of marijuana use. It’s a new frontier in the marijuana wars, and one that has divided gun-rights activists.
‘‘It’s just ridiculous,’’ said Edgar Antillon, one of the campaign organizers, who argues that firearms aren’t kept from alcohol drinkers. ‘‘Somebody can get extremely drunk — Saturday, Sunday, Monday, and all week if they want — and they can still get a concealed carry permit.’’
I'm on board with the intent (although I have some doubts about whether or not a ballot initiative is the best strategy), but I'm not sure I quite understand the need. With Colorado having made cannabis legal to buy without any paperwork or public record, how would the sheriff even know a concealed carry applicant was a cannabis user?
ReplyDeleteI suppose sheriffs could stake out the weed shops, and record all the license plate numbers of customers, but I can hardly imagine any going to all that bother and expense, just to weed out (no pun intended) a few carry permit applicants.
My guess is that its to prevent discrimination due to past convictions. Colorado, like Minnesota, where I live allows a Sheriff to deny a permit application if he feels the applicant would be a danger to self or others. For example, having a DUI conviction is not in itself something that would disqualify an applicant. However, a number of them over a period of time can suggest that potential danger.
ReplyDeleteThe Caveat being that, at least in Minnesota, the applicant can appeal the denial and the Sheriff must convince a judge that the denial is justified. And if the denial is overturned, the Sheriff pays court and legal fees of the applicant.
This would likely prevent convictions of possession of a small amount being used to base a denial. Makes good sense.
That makes sense--should have thought of that myself. Thanks, SSG.
DeleteYes, that does make sense, but I thought you guys opposed may issue on principle?
DeleteActually Mike, this is something present in both Colorado's and Minnesota's shall-issue permit laws. I saw it was present in Colorado's, but am very familiar with Minnesota's.
DeleteIn Minnesota, if a Sheriff wants to deny a permit on the danger to self and others portion of the law, he must be able to establish by clear and convincing evidence that there is a substantial likelihood that the applicant would be a danger to self or others.
And the evidence has to be documented, not alleged. And if the Sheriff's decision is overturned, he's on the hook for the applicants reasonable legal fees.
The denials and their final outcomes are documented in the annual report on carry permits published by the state.
What SSG said. A carry permit system can empower the issuing authority to deny a permit, while still remaining "shall issue." It's just that all the grounds for denial have to be explicitly written into the law--it's not up to the issuing authority (the sheriff, in this case) to make a judgment call on whether or not to deny an applicant who satisfies all the explicitly written requirements (which may include--and apparently do in Colorado--not being a user of illicit drugs, as defined by the feds).
DeleteAnd yes, I've long "opposed may issue on principle," but I also oppose "shall issue" on principle. Nothing short of Constitutional carry is good enough.
To me that sounds like a proper may issue policy.
DeleteTo me that sounds like a proper may issue policy.
DeleteThen you are clearly baffled about the difference between "may issue" and "shall issue." "Shall issue" does not mean that the issuing authority must issue the permit no matter what (which would kinda undermine whatever point there is to requiring a permit in the first place). Every "shall issue" system specifies certain requirements that if not met, the applicant is denied. In many (probably most, if not all) states among those requirements is that the applicant not be a user of illegal drugs (even if illegal only under federal, not state, law). That's still "shall issue."
In a "may issue" system, the issuing authority can deny issuance for any reason he or she chooses, or for no reason at all.
"To me that sounds like a proper may issue policy."
DeleteAs Kurt put so well, a may issue system give the issuing authority discretion which normally revolves requiring the applicant to show a justifiable need to carry. And of course, the simple wish to be able to defend yourself isn't normally good enough.
In California, this results in a system that either works as de-facto shall issue, or no-issue depending on where you live. In fact, the state of California could be viewed as a model for national reciprocity of carry permits.
Like the US, California has varying degrees of permit issuance depending on the county you live in. However, unlike the US as a whole, a permit issued in one county is valid in every county in the state. Even the counties that don't issue permits to their own residents. Sorry for wandering off topic for a bit.
Shall issue removes that discretion and makes the rules the same for everyone.
In a "may issue" system, the issuing authority can deny issuance for any reason he or she chooses, or for no reason at all.
DeleteI should add that another way a "may issue" system might be set up is with requirements that are subjective, giving the issuing authority the power to deny a permit simply by the way he/she defines the requirements. The (in)famous example being the "good and substantial reason" requirement, in which the issuing authority is the judge as to whether or not the applicant's reason for carrying a firearm is "good and substantial" enough.
I acquiesce to your greater familiarity with the laws, but I have to say this explanation certainly blurs the line between shall issue and may issue, don't you think? Maybe the only line should be between Constitutional Carry and Permit Required.
Delete. . . I have to say this explanation certainly blurs the line between shall issue and may issue, don't you think?
DeleteIt's really not that complicated. You've always known that even in a "shall issue" system, there are requirements that an applicant must meet, in order to get a permit. One must pay the required fee, must have a background that is free of certain kinds of offenses, etc. The issuing authority will deny a permit for failure to meet those requirements, but that doesn't change the fact that it's a "shall issue" system.
Maybe the only line should be between Constitutional Carry and Permit Required.
That's the distinction that matters most to me, personally, but still, the difference between any "shall issue" state (say Colorado) and any "may issue" state (say California) is significant. In Colorado, if an applicant meets all the explicitly defined requirements, he/she must be issued a permit. In California, the sheriff can deny the permit for whatever reason he/she wishes--or for no reason at all.
That's a substantial difference.
"but I have to say this explanation certainly blurs the line between shall issue and may issue, don't you think?"
DeleteI don't think so Mike. Currently we have two court cases moving through the system that deal with permit systems. Peruta, which so far has declared the requirement to prove justifiable need, which is the backbone of may-issue to be unconstitutional.
Palmer in DC declared that there needs to be some way for citizens to carry for protection, and now its getting into whether that requires shall-issue or not.
If Peruta and the other challenges prevail, California and Hawaii will become essentially shall-issue.
Kurt: " The (in)famous example being the "good and substantial reason" requirement, in which the issuing authority is the judge as to whether or not the applicant's reason for carrying a firearm is "good and substantial" enough."
DeleteAnd often the determination is based on whether or not their contribution to the sheriff's reelection campaign is "good and substantial" enough.
I hear you, but still this sounds like may issue to me:
Delete"he must BE able to establish by clear and convincing evidence that there is a substantial likelihood that the applicant would be a danger to self or others."
I never bought the "being denied on capricious and made-up reasons" thing that you guys keep talking about, or like TS says, contributions to the sheriff. May issue denials are usually based on some reasons that can and should be backed up by "clear and convincing evidence." In many cases they might not reach the level of felony convictions or domestic abuse convictions, but they can still be substantial and evidence-based.
Bold emphasis added:
DeleteI never bought the "being denied on capricious and made-up reasons" thing that you guys keep talking about, or like TS says, contributions to the sheriff.
The previous sheriff of Orange County, California is (in)famous for doing exactly that. From the Orange County Register:
This was a 180-degree turn from her decision in 2010 to tighten concealed weapon regulations -- after the previous sheriff handed out gun permits to reward supporters.
And I gotta ask:
May issue denials are usually based on some reasons that can and should be backed up by "clear and convincing evidence."
How do you know what the denials "are usually based on," and even if you do, by some mystical, magical power, have this knowledge, why should "usually based on" be good enough--why should we not demand that every denial of the right to effective self-defense be based on documented heinous behavior on the part of the applicant?
"I never bought the "being denied on capricious and made-up reasons" thing that you guys keep talking about, or like TS says, contributions to the sheriff."
Delete"In L.A. County, records show, most of the permits go to judges and reserve deputies. But there is another group that seems to have better luck than most in obtaining permits: friends of Lee Baca. Those who've given the sheriff gifts or donated to his campaign are disproportionately represented on the roster of permit holders."
http://www.laweekly.com/2013-02-14/news/sheriff-lee-baca-concealed-weapons-permit/
Mike: "May issue denials are usually based on some reasons that can and should be backed up by "clear and convincing evidence." In many cases they might not reach the level of felony convictions or domestic abuse convictions, but they can still be substantial and evidence-based."
DeleteBut that is not what is going on. There are whole departments that never issue permits. Do you really think they came up with a substantial case for each denial? Why do you think Peruta won his case then? When I called my Sheriff's office to inquire about permits they told me not to even bother applying. "The Sheriff is not issuing permits", they said.
I agree there has been abuse. But the solution is not to make it straight shall issue, it's better to define the guidelines for may issue. And I suppose if those guidelines were adequately defined, you could call it shall issue and everybody would be happy.
DeleteI agree there has been abuse.
DeleteYou have an odd way of expressing that "agreement," then:
I never bought the "being denied on capricious and made-up reasons" thing that you guys keep talking about, or like TS says, contributions to the sheriff.
So have you changed your mind, or was it in a different "context" that you said that you never bought the notion of arbitrary or capricious denials?
. . . you could call it shall issue and everybody would be happy.
Not "everyone":
Nothing short of Constitutional carry is good enough.
And:
I oppose may issue as well as shall issue constitutional carry in all states should be the law.
So then you support the Peruta case? That's exactly what it is doing. It's addressing the abuses of denying permits for no reason.
DeleteGood point, Kurt. I guess I should accept that there have been abuses. What I would recommend is may issue with clear guidelines for denying permits. That way you can call it shall issue and we'll all be happy.
Delete"What I would recommend is may issue with clear guidelines for denying permits."
DeleteIn order to call it shall issue, you need to remove discretionary denial power from the government body issuing the permits. That is why the rapid enactment of these systems took place. People are no longer willing to assume that the Chief or Sheriff knows best and now demand equal treatment.
That way you can call it shall issue and we'll all be happy.
DeleteAgain with the "we'll all be happy," with
"shall issue," Mikeb? I keep telling you that nothing short of Constitutional carry is enough to make me happy.
By the way Reason has a much more in-depth article about the Colorado effort.
I found this part particularly interesting:
On the legislative front, Sen. John Walsh (D-Mont.) proposed a bill amendment this year to defund Department of Justice and ATF attempts to enforce gun laws against state-legal medical marijuana users, but it failed.
A Democrat trying to expand liberty--who'da thunk it? Maybe they grow 'em differently (better) in Montana.
"Yes, that does make sense, but I thought you guys opposed may issue on principle?"
ReplyDeleteI oppose may issue as well as shall issue constitutional carry in all states should be the law.
MBIAC.....