Contributor Post Created with Sketch. Do Guns and Medical Marijuana Mix? A Ninth Circuit Decision Says No.


gunweedWednesday, 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.

There are 22 comments.

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  1. Fritz Member

    The threat to their 2nd amendment rights is one more reason that medical marijuana patients in Washington state are not signing up for the patient registry, even though it costs them more out of pocket.

    All medical marijuana clinics, which had been legal under state law for some years, were recently required to come under the umbrella of state-licensed recreational pot stores, or else stop serving patients. The patient registry is optional but affords a patient a lower cost for their pot than non-medical users in the licensed pot shops. But so long as federal law continues to classify pot as a controlled substance on a par with heroin, patients feared being on the registry would adversely impact their rights regarding firearms ownership or acquisition (or worse at the hands of the feds).

    Meanwhile, the banking system refuses to allow even licensed pot shops to have bank accounts, out of fear of the feds charging the bank with money laundering of illegal drug proceeds. The recreational shops look at your photo ID or license to be sure you are of age and can legally buy their products, but sell for cash only, no credit cards or checks, and they do not compile lists of customers.

    Clearly, pot and guns do not mix any better than guns and booze, but just because you are known to imbibe ought not strip you of your constitutional rights, nor should use of marijuana, medical or recreational.

    • #1
    • August 31, 2016, at 4:55 PM PDT
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  2. Front Seat Cat Member

    There is no such thing as medical marijuana – it was a testing ground to legalization – to answer your question, no, they don’t mix. We’ve opened the gates to anything goes – no boundaries – if you have boundaries, you are deemed “non’progressive” and outdated. Boundaries have moral implications – so erasing morals paves the way to the anything goes culture – we are fast-tracking in that direction.

    • #2
    • August 31, 2016, at 5:07 PM PDT
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  3. Skyler Coolidge

    I bet if Trump gets on board and calls for legalization of this herb, he would win in a landslide.

    • #3
    • August 31, 2016, at 5:33 PM PDT
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  4. MisterSirius Member

    I like the BB gun in the OP picture!

    It is a well used, well loved one, you can tell — not some prop straight out of the box.

    Good times!

    • #4
    • August 31, 2016, at 5:48 PM PDT
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  5. DocJay Inactive

    MisterSirius:I like the BB gun in the OP picture!

    It is a well used, well loved one, you can tell — not some prop straight out of the box.

    Good times!

    Exactly what I was thinking. Pull to cock and one shot.

    • #5
    • August 31, 2016, at 5:57 PM PDT
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  6. Trinity Waters Inactive

    Skyler:I bet if Trump gets on board and calls for legalization of this herb, he would win in a landslide.

    He would lose voters. His supporters have largely had quite enough of cultural decline, sped up by socialists and libertarians, or is that libertines?

    • #6
    • August 31, 2016, at 5:58 PM PDT
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  7. DocJay Inactive

    In Nevada you cannot simultaneously have a concealed weapons permit and a dope card. I just don’t have a problem with this.

    • #7
    • August 31, 2016, at 6:10 PM PDT
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  8. Fake John/Jane Galt Coolidge

    DocJay:In Nevada you cannot simultaneously have a concealed weapons permit and a dope card. I just don’t have a problem with this.

    I do. You should not take away a persons civil rights because you do not like his medical history. They start with grass the next thing they will do is take them away because of other drugs, like sleeping pills or antihistamines.

    No, you want to remove a persons civil right then take them via some sort of judicial process so they can have their day in court.

    As Terrible Ted says, “If they can take one, they can take them all”

    • #8
    • August 31, 2016, at 6:25 PM PDT
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  9. Skyler Coolidge

    DocJay:In Nevada you cannot simultaneously have a concealed weapons permit and a dope card. I just don’t have a problem with this.

    Good grief. About half the population smokes rope. I don’t think it’s such a danger.

    • #9
    • August 31, 2016, at 6:34 PM PDT
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  10. Laura Thomas Boren Inactive

    @fritz – if people realized they would have their Constitutional rights thrown out, they would probably not want to be part of any registry which gives their names to other governmental entities. It’s really unconscionable. Especially since marijuana is most closely related to alcohol in terms of impairment (and actually comes out better if compared to alcohol) – and last I heard, you can be drunk or an alcoholic and you can still buy a gun legally. Seems like in either case, there could be problems, but it’s not enough to toss away a right.

    • #10
    • August 31, 2016, at 6:45 PM PDT
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  11. DocJay Inactive

    It’s a sticky issue. Most card holders are baked a good part of the time. Carrying a weapon requires sobriety.

    The issue in the OP is ownership though and not carrying.

    • #11
    • August 31, 2016, at 6:47 PM PDT
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  12. Laura Thomas Boren Inactive

    I guess I am surprised by this ruling, but I’d have to read the case to understand it better. The Ninth Circuit has a reputation for being pretty liberal/leftist/progressive as compared to other circuits – or at least it used to have this reputation. Maybe this has changed.

    The whole states carving out an exception to a federal law bit is interesting, though. I’m sure there are many other examples of this in history.

    Living here in California, I will be voting in November to legalize recreational pot, although I am not a partaker of it. I always thought the medical card idea which was admirable in one way, was also, in practice, so highly abused to be nonsensical. Anyone in California can get one, so what’s the point?

    Of course now the Ninth Circuit has given one a good reason to not get a card because if you have it, your rights can be quashed. There is no evidence that marijuana users (whether for medical reasons or no reason at all) are more dangerous with a gun than, say, an alcoholic or any other illegal drug user or abuser who is not “tracked”.

    • #12
    • August 31, 2016, at 6:57 PM PDT
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  13. Tree Rat Member

    Now, if they would say pot users should not be allowed to be ‘journalists’ ….

    • #13
    • August 31, 2016, at 7:37 PM PDT
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  14. Laura Thomas Boren Inactive

    @richardfinlay – that’s a pre-requisite!

    • #14
    • August 31, 2016, at 7:39 PM PDT
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  15. Paul Dougherty Member

    Leave it to the Ninth Circuit to harsh my mellow…

    • #15
    • August 31, 2016, at 9:29 PM PDT
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  16. Fake John/Jane Galt Coolidge

    Paul Dougherty:Leave it to the Ninth Circuit to harsh my mellow…

    Does this ruling mean I will no longer be able to get a shotgun using my shotgun?

    • #16
    • August 31, 2016, at 9:45 PM PDT
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  17. Skyler Coolidge

    Laura Thomas Boren: The whole states carving out an exception to a federal law bit is interesting, though.

    Yes. Legally states aren’t allowed to do so by current interpretation of the Constitution. This is an example of why the governors need to proclaim the right to enforce the tenth amendment and take back some of the power unlawfully seized by the federal government over many generations. We no longer have checks and balances in our government. The three branches are more like a cabal than they are checking each other.

    • #17
    • September 1, 2016, at 1:53 AM PDT
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  18. civil westman Inactive

    This case presents interesting conflicts in various jurisdictional, Constitutional, procedural and substantive (outcome) domains. Substantively, as DocJay has pointed out, there are valid reasons for concern regarding carrying while under the influence of any mood altering substance. That said, my first thought was that this case represents a dangerous excuse to deny Second Amendment rights on medical grounds. I have predicted that the federal tyrant will go the route of New York State and deny gun rights to anyone who has ever has a prescription for any psychotropic drug, like Prozac or Ativan.

    That prediction followed the proposed Toomey Manchin bill, which specifically exempted the NICS system from HIPAA protections. Its purpose was to deny guns to the “seriously mentally ill.” Since the bill did not define that term, the Attorney General (Holder at the time) would have been able to define it as anyone who has ever taken psychotropic medications. Had it passed, the NICS system would have been able to look at your prescription drug history to determine whether or not you have a Second Amendment right, as determined by Eric Holder! To progressives, in the present court climate (well stocked with progressive ideologues), this is an easy way to disarm about half the public; low-hanging fruit. The only impediment: a police officer friend tells me that more than half of the force is on such medications. Wonder why?

    • #18
    • September 1, 2016, at 7:48 AM PDT
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  19. Quake Voter Inactive

    The most thoughtful tactical move for Trump would be a call for state control over the question and a signature Trump attack on federal mandates on marijuana and gun rights. Would win some begrudging points from conservatives and maybe, just maybe, win over some Johnson voters and introduce younger voters to federalism.

    Of course this would require constitutional precision and tact…

    • #19
    • September 1, 2016, at 7:55 AM PDT
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  20. Robert E. Lee Member
    Robert E. Lee Joined in the first year of Ricochet Ricochet Charter Member

    The federal government says marijuana is illegal, the state says it is and people can buy and use marijuana in the state. The feds say possession of a gun is illegal if you use marijuana, can’t the state say guns are legal for their citizens as long as they don’t take them out of state?

    • #20
    • September 1, 2016, at 2:48 PM PDT
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  21. Skyler Coolidge

    Robert E. Lee:The federal government says marijuana is illegal, the state says it is and people can buy and use marijuana in the state. The feds say possession of a gun is illegal if you use marijuana, can’t the state say guns are legal for their citizens as long as they don’t take them out of state?

    Yes, and they should. The states need to start enforcing the tenth amendment and start claiming the power to interpret the Constitution, at least as it pertains to state powers. The governors need to have a Marbury moment, just like John Marshall, and declare that power.

    The courts can no longer be entrusted to preserve the Constitution and our freedoms.

    • #21
    • September 1, 2016, at 3:13 PM PDT
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  22. Laura Thomas Boren Inactive

    @civilwestman – I don’t think it was any accident that along with Obamacare came questions in doctor’s offices about ethnicity and in some cases, questions about guns in the home. None of this is benign. I have basically refused to provide additional information to the federal government unless I cannot avoid it.

    As a former psychotherapist I am concerned about the misunderstandings that exist about mental disorders generally. If people are concerned about the government tracking a mental health diagnosis for any reason, how many people are going to be willing to utilize mental health benefits they may have? Or even seek treatment? There is still plenty of prejudice against even admitting you have depression or anxiety so adding the threat (or fact) of government intrusion between a therapist or doctor and a patient will have a chilling effect. And even more people will fall between the cracks and the whole point of trying to filter out the mentally ill from buying guns by prescriptions or diagnosis will be defeated.

    • #22
    • September 1, 2016, at 9:47 PM PDT
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