Texans denied second amendment rights for marijuana convictions, as Texan Veteran’s case shows

iStock_000009656284XSmall.jpgIn 1971, officers arrested Ronald Kelly, a high school student at the time, for possession of a small bag of marijuana. Kelly received a misdemeanor conviction and was punished by one year of probation. Shortly after, Kelly served in the U.S. Army for 20 years where he gained more experience in properly handling firearms than most lawful gun owners possess. Despite his expertise in firearms and extended service to his country, Kelly was recently denied approval for a .22 caliber rifle at a Texas Wal-Mart due to his prior marijuana conviction.

The FBI’s National Instant Criminal Background Check System can prevent an adult from owning a gun if that adult was convicted of a crime, even a misdemeanor, which could have subjected the person to more than two years imprisonment. Since Kelly’s marijuana conviction could have technically landed him in jail for more than two years, even though it did not, the FBI may refuse the veteran’s firearm application. Many Texans wishing to exercise their second amendment right to bear arms seemingly face this issue since Texas is among the top states that file the most firearm applications. Further, federal law prohibits people who simply use marijuana, a substance that is not prone to make people violent, from possessing firearms and ammunition. This federal prohibition applies even if the state where the applicant resides has legalized, medicalized, or decriminalized the substance. Applicants are asked on firearm applications if they are unlawful users of a controlled substance and, if the applicant answers falsely, he could face felony charges.

A rejected firearm applicant could legally challenge his denial and petition for his right to bear arms. However, even if the government’s denial lacks an adequate basis, like an actual record of the applicant’s marijuana conviction, the burden is on the applicant to produce the evidence to argue against the FBI’s rejection. Once the FBI denies a firearm application for a prior conviction, the government does not have to produce the records of the conviction to show the denial was justified.

In Kelly’s case, it seems to be mystery how exactly the FBI accessed Kelly’s criminal records–which caused his firearm application denial. Kelly was convicted so long ago that his marijuana conviction record was never computerized and is not readily available. The physical records from Kelly’s marijuana arrest are so dated that courthouse officials in North Carolina, where Kelly was convicted, are having difficulty in finding such records.

Despite the legal hurdles Kelly will face in appealing his denial, Kelly is petitioning the FBI for the free exercise of his second amendment rights. If you are wishing utilize your constitutionally protected right to bear arms, but are concerned about problems with marijuana use or a previous conviction which may impose on your second amendment rights, contact an Board Certified Criminal Defense attorney who understands the intricacies of drug laws.

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Gilbert Garcia has been Passionately Pursuing Justice for over 30 years and founded The Gilbert G. Garcia Law Firm in 2008. The Gilbert G. Garcia Law Firm is a boutique law firm, specializing in Criminal Defense. Gilbert represents adults and juveniles accused of a crime and who have with a felony, misdemeanor or record cleaning case. Conveniently located on the courthouse square to serve Montgomery and Walker Counties. Gilbert became Board Certified in Criminal Law by the Texas Board of Legal Specialization in 1989. The Gilbert G. Garcia Law Firm is located at 220 N. Thompson St., Suite 202, Conroe, TX 77301.  www.ggglawfirm.com.

Drug Related Charges may include: Possession of Marijuana, Possession of Controlled Substance, Possession of Dangerous Drug, Manufacturing a Dangerous Drug/Controlled Substance, Delivery or Intent to Deliver Marijuana/Dangerous Drug/Controlled Substance, Possession of Drug Paraphernalia and many other drug related charges.