Medical Marijuana and Your Gun Rights
October/01/2016 13:59
Medical Marijuana and Your Gun Rights According to U.S. Federal Law by Josh Logan, Lead Instructor
We at Latent Force are always at the cutting edge of firearms instruction as well as law and legal aspects of firearms ownership, possession, carrying, and use. Because of this, a hot topic was brought to our attention by Josh Logan, Lead Instructor, at a recent CCW class held in July, BEFORE this case was presented to the U.S. Appellate Court and it only reaffirms what was discussed in this class to an absolute “T”.
As many of you know or do not know, there was a pivotal case that was brought to the United States Court of Appeals for the Ninth Circuit pertaining to a person who is a registered patient or caretaker of a medical marijuana patient in relation to their right to firearm purchasing and/or possessing. This was argued and filed on August 31, 2016. As of now, this is the supreme law of the land.
Here is some quick background on the case:
S. Rowan Wilson, the plaintiff in this civil suit, was issued a Nevada marijuana registry card (medical marijuana card) on May 12, 2011 in the state of Nevada. On October 4, 2011 she then went to Custom Firearms & Gunsmithing in Moundhouse, Nevada to purchase a firearm. The owner of the firearms licensee (gun store) then informed her to stop filling out the background questionnaire for the transfer of a firearm (ATF Form 4473) specifically pertaining to question 11e which specifically asks: “Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?”
If the applicant answers “Yes” to this question, the applicant cannot be transferred a firearm from the firearm licensee (purchasing a firearm from a gun store). The store owner knew S. Rowan Wilson was a Nevada marijuana registry card holder and the gun store owner refused transferring (selling) the firearm pursuant to United States federal law banning the use, consumption, and possession of marijuana, a Schedule I drug and transferring firearms to unlawful users of said drug under U.S. federal law. According to the U.S. Drug Enforcement Administration, a Schedule I Drug is defined as:
Schedule I drugs, substances, or chemicals are defined as drugs with no currently accepted medical use and a high potential for abuse. Some examples of Schedule I drugs are: heroin, lysergic acid diethylamide (LSD), marijuana (cannabis), 3,4 methylenedioxymethamphetamine (ecstasy), methaqualone, and peyote
The firearm licensee refused to transfer the firearm to Wilson due to the prohibition under U.S. federal law if:
Turning to federal firearms provisions, under 18 U.S.C.§ 922(g)(3) no person “who is an unlawful user of or addicted to any controlled substance” may “possess . . . or . . . receive any firearm or ammunition.” In addition, it is unlawful for “any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person . . . is an unlawful user of or addicted to any controlled substance.” Id. § 922(d)(3).
If you wish to further read about case law pertaining to 18 U.S.C.§ 922(g)(3), please read United States v. Dugan, 657 F.3d 998 (9th Cir. 2011), for further explanation and affirmation of this law.
18 U.S.C.§ 922(g)(3) was further explained by an open letter from the BATFE to all firearms licensees on September 21, 2011:
[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.
After Wilson, the plaintiff, was denied transfer of said firearm, she filed the abovementioned law suit (tort) against the U.S. government, specifically, Loretta Lynch (U.S. Attorney General), BATFE, B. Todd Jones (Acting Director of BATFE), Arthur Herbert (Assistant Director of BATFE), and The United States of America. These individuals were the defendants in this civil suit.
This case was first held at the United States District Court for the District of Nevada. Wilson alleged that the defendants, specifically the U.S. government, impugned on her 2nd Amendment rights to bear arms, her 1st Amendment rights due to the government pushing anti-marijuana and anti-gun violence efforts on Wilson’s conduct, and finally Wilson’s 5th Amendment right to procedural due process and equal protection pertaining to her rights of the accused and civil liberties.
The government was represented by 3 U.S. Attorneys specializing in appellate law and civil law. The plaintiff was represented by 2 attorneys from a private legal firm out of Las Vegas, Nevada.
The case was reviewed by United States District Court for the District of Nevada and Chief Judge Gloria Navarro dismissed all claims of Wilson’s civil rights violations.
Subsequently, Wilson filed an appeal to the next higher court: the United States Court of Appeals for the Ninth Circuit in San Francisco, California. This case was reviewed by 3 judges of the Ninth Circuit Court and the findings of the lower court were upheld (affirmed) by the higher court.
The findings of the District Court of Nevada and the 9th Circuit Court had the opinion that Wilson’s 2nd Amendment claim lacked standing due to the fact that she was an unlawful user of or addicted to a controlled substance (according to U.S. federal law) based on the opinion of the court:
However, the Open Letter does not make a blanket assertion that all registry card users are marijuana users, it simply clarifies that a firearms dealer has “reasonable cause to believe” an individual is an unlawful user if she holds a registry card.
Moreover, legislative determinations also support the link between drug use and violence. In particular, Congress enacted 18 U.S.C. § 922(g)(3), which bars unlawful drug users from possessing firearms, “to keep firearms out of the hands of presumptively risky people.” Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 112 n.6 (1983). It is beyond dispute that illegal drug users, including marijuana users, are likely as a consequence of that use to experience altered or impaired mental states that affect their judgment and that can lead to irrational or unpredictable behavior. See Carter, 750 F.3d at 469–70. They are also more likely to have negative interactions with law enforcement officers because they engage in criminal activity. Id. Finally, they frequently make their purchases through black market sources who themselves frequently resort to violence.
It may be argued that medical marijuana users are less likely to commit violent crimes, as they often suffer from debilitating illnesses, for which marijuana may be an effective palliative. They also may be less likely than other illegal drug users to interact with law enforcement officers or make purchases through illicit channels. But those hypotheses are not sufficient to overcome Congress’s reasonable conclusion that the use of such drugs raises the risk of irrational or unpredictable behavior with which gun use should not be associated.
The District Court and 9th Circuit Court affirmed:
In Dugan, we held that the Second Amendment does not protect the rights of unlawful drug users to bear arms, id. at 999–1000, in the same way that it does not protect the rights of “felons and the mentally ill,”
Wilson’s 1st Amendment claim was dismissed due to the government’s anti-marijuana and anti-gun violence efforts were incidental and that they did not violate her 1st Amendment rights. Also Wilson’s 5th Amendment claims were dismissed because she “… did not have a constitutionally protected liberty interest in simultaneously holding a registry (medical marijuana) card and purchasing a firearm, nor was she a part of suspect or quasi-suspect class”.
To summarize this case, if you are planning on obtaining a medical marijuana card from your local state, by U.S. Federal Law, you are breaking the law if you obtain said card or registration. If you attempt to purchase, transfer, or possess a firearm or ammunition while possessing even a medical marijuana card, you are breaking the law. If you have in your possession a firearm or ammunition, along with a medical marijuana card, as well as marijuana in your possession, you are breaking the law, specifically U.S. Federal Law. There are also state and local laws pertaining to the possession of marijuana, how its stored, where it can be consumed, and if firearms are able to be purchased or possessed. This article specifically addresses U.S. Federal Law. Please check your local state laws, or even better, attend one of our Arizona CCW courses at www.latentforce.com.
Unless this case is brought before the U.S. Supreme Court of the United States (USSCOTUS) in the form of a writ of certiorari and overturned, this case clearly delineates the law pertaining to unlawful user of or addicted to a controlled substance and firearm ownership, possession, and purchasing, specifically marijuana, but also other illicit drugs as described under U.S. Federal Law by the Drug Enforcement Administration and the Bureau of Alcohol, Tobacco, Firearms, and Explosives.
Like it or not, we at Latent Force, do not have an opinion on this case, we are only presenting the facts of this case, the opinions of the court, the laws of this land, and specifically instructing you on laws. We do not offer legal advice or counsel, we are not bar certified attorneys or esquires, we are instructors and law enforcement professionals. The final word in this case is the opinion of the court as dictated in the case brief in the references section of this article.
We at Latent Force wish this article was educational, insightful, and thought-provoking. We truly care about your well-being and safety both from a criminal attack, as well as you following the laws in being a law-abiding, responsible, and informed armed citizen. We hope to see you at an upcoming class.
STAY IN THE FIGHT
Your humble servant and sheepdog,