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Wednesday, in Wilson v. Lynch, the Court of Appeals for the Ninth Circuit handed down a decision holding that the federal government was within its rights when it decreed, via an open letter to all gun dealers, that any person who held a state license to use marijuana for medical purposes was banned from purchasing a weapon. The ruling applied even though it was in a collision course with the Second Amendment guarantee of the right “to keep and bear arms.”
To people not versed in the law, the decision reads like a bundle of technicalities. Come to think of it, for those who are versed in the law, the same conclusion holds.
The alleged conflict arises because of an uneasy truce between Nevada and federal law. Under the federal Controlled Substances Act, marijuana is listed as a Schedule I drug, which means that it is deemed “no currently accepted medical use in treatment” and further that “[t]here is a lack of accepted safety for use of the . . . substance under medical supervision.” At the same time many states, including Nevada, have passed laws that allow for the use of medical marijuana by people whose dire health conditions warrant its use.
The obvious question is how can the federal government bury its head in the sand by claiming that medical marijuana is a quack treatment, when thousands upon thousands of people, by means fair or foul, desperately seek it use. There is no reason in these cases to do double-blind clinical trials to see whether it eases the pain. The people who have used it, often on multiple occasions, have reported just that. Let them use it. For those whom it does not work, they will not use it further.
The correct way to deal with this issue is perhaps to mount a long-overdue frontal assault on this extreme statement, at which point medical marijuana is no longer an illegal activity. That step has never been taken, and given the extraordinary deference that the courts show the federal government on issues of drug regulation, it won’t happen any time soon. So the upshot is a truce. The federal government does not prosecute anyone who makes medical use of marijuana, but it announces through an Open Letter to dealers that it is illegal for them to sell any firearms to persons who are registered to receive medical marijuana even if they are not currently taking the drug. The plaintiff, S. Rowan Wilson, was turned down by a firearms dealer and sued the Attorney General to overturn the ban on sales. She lost, unanimously.
No one doubted that the ability to purchase a gun for self-defense was a core Second Amendment right. But there was much discussion of the strength of the government’s justification for imposing that limitation. The gist of the government case was that under federal law no person “who is an unlawful user of or addicted to any controlled substance” may “possess . . . or . . . receive any firearm or ammunition.” The obvious disjunction in this pronouncement is its purported equation of “unlawful user” with “addicted” person. In many contexts, unlawful use is a big deal, but in this case the accurate statement is that the plaintiff is someone “whose use is unlawful but tolerated under federal law because it is authorized under state law.” At the very least it is a huge stretch to insist that someone who enjoys this dubious status should be treated on a par with persons who are addicted to the use of marijuana, which does not seem to be remotely the case here.
The false equation then skews the rest of the opinion. The government produced studies that indicated that persons who use marijuana are more likely to commit violent offenses than those persons who did not. The huge hole in its studies was that it did not distinguish medical marijuana users from other users. The court recognized the point, but concluded, without evidence, that the gap was not likely to be large enough to make a difference given the level of deference afforded the government on matters of this sort.
Really? The mere fact that the government did not proffer any studies that pertained solely to medical marijuana users shows that its general position is based on misplaced prejudice rather than reasoned argument. At the very least the court should have forced the government to repair this glaring methodological omission. But to do that is the challenge to the core the notion that marijuana should be a Schedule I drug in the first place. So again, it won’t happen.
The rest of the opinion canvasses four other objections: “(1) violation of the Equal Protection Clause of the Fifth Amendment, (2) violation of the procedural Due Process Clause of the Fifth Amendment, (3) violation of the substantive Due Process Clause of the Fifth Amendment, and (4) violation of the First Amendment.” But there is no reason to review these tortuous arguments here. Once the main claim of Second Amendment rights goes down the tube, the collateral arguments will fall with it. My nagging belief is that Wilson is actually correct under current law, which means that it would be most welcome for the Supreme Court to review the case to see if can bring some intellectual coherence to this untidy corner of the law.