Mimesis Law
10 December 2019

9th Circuit to NV Marijuana Card Holders: Leave The Gun, Take The Pot

September 8, 2016 (Mimesis Law) — The U.S. Ninth Circuit Court of Appeals has affirmed the dismissal of a lawsuit challenging the federal statutes, regulations, and guidance that forbid Mrs. S. Rowan Wilson from buying a gun because she possesses a Nevada medical marijuana registry card.

Within the dichotomy of the federalist system, the State of Nevada forbids the state prosecution of individuals who have a medical marijuana card while the feds still regard any amount of pot (prescribed or otherwise) as illegal under the Controlled Substances Act.  And based upon a 2011 “Open Letter to All Federal Firearms Licensees” issued by the ATF, it proscribed the transfer of firearms to any person who “uses” or “is addicted to” a controlled substance, notwithstanding any state legislation allowing that person to be prescribed medical marijuana.  The text from the letter is straightforward and ominous:

[A]ny person who uses or is addicted to marijuana, regardless of whether his or her State has passed legislation authorizing marijuana use for medicinal purposes, is an unlawful user of or addicted to a controlled substance, and is prohibited by Federal law from possessing firearms or ammunition. Such persons should answer “yes” to question 11.e. on ATF Form 4473 . . . and you may not transfer firearms or ammunition to them. Further, if you are aware that the potential transferee is in possession of a card authorizing the possession and use of marijuana under State law, then you have “reasonable cause to believe” that the person is an unlawful user of a controlled substance. As such, you may not transfer firearms or ammunition to the person, even if the person answered “no” to question 11.e. on ATF Form 4473.

Gun purchasers like Wilson are required to fill out ATF Form 4473, which must be filled out under pain of perjury and/or prosecution under the Gun Control Act of 1968,* and it includes several questions to which an answer of “yes” may prevent the transfer of the firearm.  Wilson refused to admit to unlawfully using a controlled substance by leaving question 11.e. blank, and the gun shop owner — who had received the ATF’s open letter just three days earlier — declined to sell her the firearm.

The opinion, which was authored by Senior District Judge Jeff S. Rakoff from the SDNY, initially dismisses the government’s “link” between drug use and violence:

By citing to the link between unlawful drug users and violence in this case, however, the Government incorrectly conflates registry cardholders with unlawful drug users. While these two categories of people overlap, they are not identical. The Government’s showings of the link between drug use and violence would be sufficient were we applying intermediate scrutiny to 18 U.S.C. § 922(g)(3), which bars unlawful drug users from possessing firearms. But Wilson flatly maintains that she is not an unlawful drug user and is instead challenging a set of laws that bar non-drug users from purchasing firearms if there is only reasonable cause to believe that they are unlawful drug users, for instance, if they hold a registry card. Wilson correctly points out that the degree of fit between these laws and the ultimate aim of preventing gun violence is not as tight as the fit with laws like 18 U.S.C. § 922(g)(3), which affect only illegal drug users.

If Wilson had a competent criminal defense attorney at her disposal, that attorney would advice Wilson to avoid admitting to being an “unlawful user” of a controlled substance before possessing a gun. As the ATF’s implied threat open letter correctly points out, it’s a federal offense to do so. The likelihood of her being prosecuted would not affect the legal advice given to Wilson, as a prosecutor’s noblesse oblige is not part of the analysis so long as the statute remains valid. A sitting duck is still a sitting duck.

Others before her have cited the seminal U.S. Supreme Court decision of D.C. v. Heller in claiming that 18 U.S.C. § 922(g)(3) runs afoul the Second Amendment to the U.S. Constitution, but to no avail (that opinion points out how 26 states and the District of Columbia have passed laws restricting firearms possession by habitual illegal drug users).  Wilson’s Second Amendment argument was also shut down by the Court, in that she could have built an arsenal before obtaining her medical marijuana registry card, or she could simply now give one up for the other:

Wilson could have amassed legal firearms before acquiring a registry card, and 18 U.S.C. § 922(d)(3), 27 C.F.R. § 478.11, and the Open Letter would not impede her right to keep her firearms or to use them to protect herself and her home. In addition, Wilson could acquire firearms and exercise her right to self-defense at any time by surrendering her registry card, thereby demonstrating to a firearms dealer that there is no reasonable cause to believe she is an unlawful drug user. Because 18 U.S.C. § 922(d)(3), 27 C.F.R. § 478.11, and the Open Letter do not place a severe burden on Wilson’s core right to defend herself with firearms, we apply intermediate scrutiny to determine whether these laws and guidance pass constitutional muster

Reasonable minds may point out that it’s typically of those who consume uppers (and those who are higher up the criminal food chain) who tend to have an increased proclivity for violence once they’re under the influence. Respectable health organizations point to the strong link between violence and ethanol consumption,** while a study published in the Journal of Addictive diseases shows a connection between marijuana and violence to be significantly related to the frequency of being involved in selling drugs.

Thus, it’s not likely that responsible medical marijuana buyers like Wilson will go on a violent rampage as a result of scoring some pot from their local dispensary. But the 9th Circuit nonetheless told Wilson that she can’t have both: leave the gun if you want to take the cannoli medical pot registry card.

*Congress passed the Gun Control Act of 1968 following the assassinations of President John F. Kennedy, Senator Robert Kennedy, and Dr. Martin Luther King, Jr., and the grounds for keeping someone from getting a gun are his age, criminal background, or incompetence. The obvious implication of an affirmative reply to question 11.e. in ATF Form 4473 is that unlawful drug users are incompetent for purposes of gun ownership.

**It’s usually different when it comes to booze. The same appeals court from the Wilson case has ruled that habitual drunkards sans legal papers cannot be barred from admission to the U.S., while pot possession can get you deported from the U.S. or federally charged, no matter how small the amount.

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