Gun Rights

Challenge to Barring Medical Marijuana Licensees from Buying Guns Loses in Federal Court [UPDATED]

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Long-awaited and alas bad news from the case of Wilson v. Holder, which I reported on all the way back in December 2011.

Rowan Wilson, then a Nevada-based medical technician in residential care homes, was not able to buy a gun from a licensed dealer who was personally acquainted with her and knew she had a state medical marijuana patient card.

This is because the dealer knew of Bureau of Alcohol Tobacco Firearms and Explosives (BATFE) rules that stated "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…may not transfer firearms or ammunition to the person."

Such a person, the feds insist, would fall afoul of Sect. 922(g) of the federal criminal code (from the 1968 federal Gun Control Act), which says that anyone "who is an unlawful user of or addicted to any controlled substance" is basically barred from possessing or receiving guns or ammo.

Wilson thought that BATFE policy violated her Second Amendment rights and sued.

To quote from my 2011 reporting:

As the suit says, "Ms. Wilson has never been charged with or convicted of any drug-related offense, or any criminal offense….Indeed, no evidence exists that Ms. Wilson has ever been 'an unlawful user of, or addicted to, marijuana….' Ms. Wilson maintains that she is not an unlawful user of or addiction to marijuana….Nonetheless, Ms. Wilson was denied her Second Amendment right to keep and bear arms based solely on her possession of a valid State of Nevada medical marijuana registry card." The suit argues the BATFE policy also violated her Fifth Amendment right to due process since it presumes she is a prohibited drug user arbitrarily.

An opinion in that case was issued yesterday by U.S. District Court Judge Gloria Navarro, and it wasn't good. It upheld a motion to dismiss the case entirely by the federal government defendants.

Quoting from the opinion (after saying the defendants arguments that the case was moot because Wilson's marijuana card has expired in the years since the case was filed did not hold up), Judge Navarro says Wilson's argument that the ban on drug users owning guns violates the Second Amendment:

fails as a matter of law because the Ninth Circuit has already upheld the constitutionality of § 922(g)(3). United States v. Dugan, 657 F.3d 998, 999–1000 (9th Cir. 2011). In Dugan, based on the Supreme Court's acknowledgement that the individual right to possess and carry weapons is not unlimited, the Ninth Circuit observed that "[h]abitual drug users, like career criminals and the mentally ill, more likely will have difficulty exercising self-control, particularly when they are under the influence of controlled substances."…..The court further noted an important distinction between the subsections of § 922 expressly discussed by the Supreme Court in Heller and 922(g)(3): 

[U]nlike people who have been convicted of a felony or committed to a mental institution and so face a lifetime ban, an unlawful drug user may regain his right to possess a firearm simply by ending his drug abuse. The restriction in § 922(g)(3) is far less onerous than those affecting felons and the mentally ill. 
Dugan, 657 F.3d at 999. Therefore, given this distinction and the danger presented by users of controlled substances, the Ninth Circuit joined the Seventh and Eighth Circuits by broadly holding that "Congress may . . . prohibit illegal drug users from possessing firearms." 

Plaintiff first feebly attempts to discredit Dugan by stating that Dugan "is a deeply flawed opinion, lacking any meaningful legal analysis . . .." However, Dugan remains controlling authority on this Court. Furthermore, this Court lacks the authority to overrule a Ninth Circuit decision. ….In light of Dugan, any amendment of this claim would be futile and, thus, Plaintiff's Second Amendment challenge to § 922(g)(3) is dismissed with prejudice. 

Bad precedent makes bad law, and Scalia's all-too-forgiving aside in Heller about the array of gun laws that would still withstand Second Amendment scrutiny claims another right.


Judge Navarro also denied various claims that either the underlying statute or BATFE's application of it violated Wilson's rights to First Amendment expression (possession of a Nevada medical marijuana card is a form of expression she was being punished for, she argued), that the BATFE's policy violates the Administrative Procedures Act, and that there was a substantive due process claim (denied, if I'm reading it correctly, because a direct First and Second Amendment claim, already denied, precludes a due process claim under the Fifth Amendment).

Wilson also argued a procedural due process claim: that merely assuming, as BATFE does, that possessing a medical marijuana card means she is known to be an illegal drug user violates her right to due process. Navarro strikes that down thusly:

Plaintiff concludes that Defendants' determination that those persons that possess a registry card fit the definition of an "unlawful user of a controlled substance" deprives her of a right without adequate procedure…..However, Plaintiff fails to recognize that she must articulate a "constitutionally protected liberty or property interest" before her procedural due process claim may proceed. Therefore, Plaintiff's discussion of any procedural inadequacies is insufficient to defeat Defendants' Motion to Dismiss. Because Plaintiff cannot identify a constitutionally protected liberty or property interest, she cannot state a procedural due process claim and the Court must dismiss her claim with prejudice. 

This seems to be saying, on my read (I'm neither lawyer nor judge) that, hey, we already said you don't actually have a Second Amendment right if you are a drug user, so you can't make the case that insufficient procedures for identifying you as a drug user violate a Second Amendment right. This seems a little circular, but perhaps I'm misunderstanding it.

UPDATE: Talked this morning to one of Wilson's lawyers, Chaz Rainey. Rainey tells me they definitely plan an appeal to the 9th Circuit. They intend to make the case that the previous 9th Circuit case Dugan on which Judge Navarro relied to dismiss Wilson's case has a different set of facts that don't necessarily apply to Wilson; and indeed that perhaps it was poorly decided to begin with.

"Dugan is like two paragraphs long, no analysis," Rainey says. "Our core argument all along is, Dugan is just wrong and needs to be overturned at least in part. Dugan takes an outlier situation in which we have clear obvious criminal conduct and says, well, because he was dealing in massive amounts of controlled substances, the applicability of this federal law prohibiting him from having firearms is constitutionally justifiable."

The facts from the Dugan decision:

 When police officers responded to a report of domestic violence at his home oneafternoon, they discovered his marijuana operation and arrested Defendant. Because Defendant also had a business of dealing in firearms, a jury convicted him of, among other things, shipping and receiving firearms through interstate commerce while using a controlled substance, in violation of§ 922(g)(3).

As Rainey says, "to take that pattern and without further analysis apply it to" a case like Wilson merely having a medical marijuana card isn't analogous. 

Rainey thinks it's strange the judge took over a year merely to dismiss the case, and thinks her arguments were too thoughtlessly just parroting what the feds said, including that weird circular argument I noted above in which she seems to say, it doesn't matter if you were declared a drug user without any meaningful due process and thus deprived of Second Amendment rights, because we already said drug users don't have Second Amendment rights.



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  1. Good old Guns and Dope Party. I especially like their position on ostriches in the legislature.

    1. Dope, Guns, AND FUCKING IN THE STREETS Party.

    2. Wait, it’s a POLITICAL party? Great I wasted $2 on a funny hat.

  2. F
    Y
    T
    W
    !

    1. this ^^

  3. I, of course, always answer completely truthfully. But the number of people who just plain lie on the use of controlled substances question must be enormous.
    Another fine example of the pointlessness of laws that most people wouldn’t obey even if there were no law.

  4. I don’t know WTF is wrong with the site today, but it’s FUCKING IRRITATING. STOP IT!

  5. I would think she’d have a better case on Fifth Amendment grounds. How can she possibly be considered an “unlawful user” of something she’s never been convicted of using unlawfully?

  6. Such a person, the feds insist, would fall afoul of Sect. 922(g) of the federal criminal code (from the 1968 federal Gun Control Act), which says that anyone “who is an unlawful user of or addicted to any controlled substance” is basically barred from possessing or receiving guns or ammo.

    A 50-year-old federal law that was ridiculous before the ink even dried now prevents a Nevada-legal cannabis user who takes care of old people from legally owning a gun. As though we needed another reason to disregard a legal system that consistently ignores ownership rights (self and otherwise) and doesn’t even have the decency to append sunset clauses to every bit of needless legislation it cranks out.

  7. Well this certainly touches on a subject I’ve talked about here.

    If marijuana is legal in state x, and you’ve legally purchased marijuana in state x, when you do your federal background check, would that bar you from owning a firearm? Looks like the Feds lean towards the ‘yes’ spectrum on that answer.

    1. Marijuana is only legal under certain state laws, which means jack all since it’s still illegal under federal law which has precedence, and which per Raich is a legitimate exercise of federal power.

      The only reason medical or recreational dispensaries exist is through the benevolence of the current executive branch in turning a blind eye. Once this conflicts with something they hate, like guns or conservatives or charter schools or Fox News or calling girls bossy, expect those laws to be stringently enforced.

  8. This won’t change short of federal legalization.

  9. This seems to be saying, on my read (I’m neither lawyer nor judge) that, hey, we already said you don’t actually have a Second Amendment right if you are a drug user, so you can’t make the case that insufficient procedures for identifying you as a drug user violate a Second Amendment right.

    That is exactly what they are saying Brian and it is complete nonsense. By this logic, anyone who has a conceal and carry permit has to give it up whenever they get a prescription for adderall or Tylenol 3, since both are controlled substances. Of course I seriously doubt any court would say that getting a pain killer prescription after surgery means the state can take away your right to own a gun.

    I think the problem here is not with the Court’s view of the 2nd Amendment. The problem is the Court’s view of marijuana. They seem to either not understand or not recognize that having a marijuana card means what you are doing is legal. It is no different than having a prescription for any other schedule 3 drug. The Court seems to have looked at this case and said “but the 2nd Amendment doesn’t apply to druggies” as if anyone smoking pot is still using illegal drugs medical card or not.

    I am not as down on this case in terms of gun rights as you are. But I am very depressed about it as a marijuana rights case. The court is not making gun rights a second class right. It is making medical marijuana use a second class and really criminal form of medicine.

    1. I’m guessing (IANAL) that MJ’s schedule I status is the crux of the issue here. As I recall, schedule I means the feds don’t recognize any legitimate medical use, meaning that it technically can’t be medicine from the standpoint of federal law, therefore any medicinal use is unlawful use.

      Of course, it always bears repeating that this is a state of affairs that Obama actually does have authority to correct with just his pen and his phone, but which he denies having any power to change.

      1. Yep. A prescription for Tylenol 3 is lawful use of a controlled substance. But with the language ‘unlawful use of a controlled substance’, that to me means that ANY use of marijuana is unlawful use of a controlled substance, and if you’re addicted to or have Tylenol 3 without a prescription that too would constitute unlawful use of a controlled substance.

  10. That is exactly what they are saying Brian and it is complete nonsense. By this logic, anyone who has a conceal and carry permit has to give it up whenever they get a prescription for adderall or Tylenol 3, since both are controlled substances.

    I don’t see it that way at all. Marijuana, by federal law is illegal. The court is merely looking at this through the Federal Government’s eyes, not the state’s.

    Marijuana is illegal, therefore users of marijuana cannot own a firearm.

    F d’A said it above, this needs a change in federal law.

    1. As for the ‘addicted to’, that gets more nebulous. I guess if you’re addicted to legal painkillers, you’re also barred from owning a firearm… That would be very difficult to prove.

    2. “Marijuana is illegal, therefore users of marijuana cannot own a firearm.”

      Bullshit. “Shall not be infringed” Doesn’t say anything about drugs, alcohol, felons (the law is actually anyone convicted of a crime punishable by more than 1yr in prison, a very low bar), or the mentally handicapped. If people want to change this they should amend the constitution, not ignore it, which leads to bullshit like this.

      1. Are we commenting on the state of the madness or how we got there? Because you joined the wrong conversation.

        I mean, good luck not paying your taxes because the IRS is unconstitutional.

    3. There is also the question of how you go from having a Medical MJ card to being a user of MJ. No one has even proven that this person actually uses MJ, legally or not.

      1. Mofo hits the point exactly. Wilson argued that she was being classified as an illegal drug user without due process because merely having that license is no proof she is guilty of the behavior that nullifies her Sec Am rights. The court’s response was more or less: “Druggies don’t have rights, so it doesn’t matter what procedure we use to decide you are a druggie. Druggie!”

      2. It’s an interesting point, but a fine one that I don’t see any government caring about.

        If I purchase legal recreational marijuana in a store, and the store provides the record of my purchase to nosy federal officials, there’s no record of my using marijuana, just a record that I purchased some.

        This is why we have localities fingerprinting and recording the license and purchase information of people buying cold medicine.

        I don’t agree with any of it, but the government doesn’t seem to much care about your exact relationship to the drug, only that you’ve declared you have one.

        1. “If I purchase legal recreational marijuana in a store, and the store provides the record of my purchase to nosy federal officials, there’s no record of my using marijuana, just a record that I purchased some.”

          Which still doesn’t prvoe you USED it, which is the standard for taking your guns away according to the law.

          I don’t see what point you’re tryting to make, that the govt doesn’t care that it’s irrefutably wrong on the law?

          They rarely do, that’s why court cases exist, and why judges limit the govt’s powers.

          You seem to be arguing that any case is doomed to fail unless the govt agrees, which is retarded.

          “It’s an interesting point, but a fine one that I don’t see any government caring about.”

          Again, they’re not required to care about it, just adhere to the law as it is written.

          1. I don’t see what point you’re tryting to make, that the govt doesn’t care that it’s irrefutably wrong on the law?

            The government is irrefutably wrong on almost everything it touches. The point I’m trying to make is that I’m not surprised the government rejected the plaintiff’s argument.

            You seem to be arguing that any case is doomed to fail unless the govt agrees, which is retarded.

            I’m not even sure where you’re going off the rails here. But off the rails you are.

            Marijuana is illegal by federal law. People deemed to have a relationship with the drug will be barred firearms ownership.

            Are you really so late to the game you’re stunned that the federal government and courts are using fine procedural inflection to bar people from their constitutional rights? Or have you paid absolutely zero attention to say, oh, let me pick one at random…. Kelo.

            You almost sound like that guy who wrote “Holy shit, the government is putting people in jail for marijuana… it’s getting insane!”

            To which one commenter responded: “He said waking up from his 100 year nap”.

          2. Let me ask you this… did you know you could be arrested for purchasing too much cold medicine, whether you’ve USED IT OR NOT?

      3. I think this is an important point. Though I have a state issued concealed carry permit, it is against federal law for me to carry on most federal property. Could the government then come back and claim that because I had a permit that keeps me from running afoul of state law when I’m toting, I may have broken federal law at some point and should, therefore, be denied firearms in the future?

  11. Agreed. Bad outcome but I’m not so sure it’s a bad decision:

    However, under the Controlled Substances Act, marijuana is listed as a controlled substance that cannot be lawfully prescribed and that the general public may not lawfully possess. 21 U.S.C. ? 802(6); 21 U.S.C. ? 812(c), Sched. I(c)(10). There is no provision under Federal law that permits any class of the general public to lawfully possess marijuana, including those wishing to use marijuana for medical purposes.

    So the Feds still call it illegal, despite what individual states say. I’d refer people back to Thomas’s brilliant dissent in Raich but that’s preaching to the choir here.

  12. “NO ONE WANTS TO TAKE YOUR GUNS!!”!

    http://www.forwardprogressives…..damn-guns/

    “None of that is an attack on the Second Amendment, it’s called using common sense. Just because our Constitution gives us a right, doesn’t mean that right can’t have problems that need solutions.”

    “Problem”
    – Someone smokes marijuana
    “Solution”
    – Take guns away
    “Problem”
    – Someone once was in therapy
    “Solution”
    – Take guns away
    “Problem”
    – Someone has too many parking tickets
    “Solution”
    – Take guns away

    See?

    1. Clicking over to that site made me feel stupider.

    2. None of that is an attack on the Second Amendment, it’s called using common sense.

      The surest way to tell that someone is offering a big helping of bullshit is when they use common sense in a political context. Or folks.

    3. “Problem”
      – Someone gets handouts from the government
      “Solution”
      – Take guns away

    4. You don’t need more than 10 bullets to hunt or defend yourself?and if you do, you probably shouldn’t be operating any kind of firearms to begin with.

      Sweet. I like that this guy supports magazine capacity limits for the police as well, at least.

      Wait, that’s not what he meant?

      1. Perhaps the LE in his town are terrible marksmen?

    5. Just because our Constitution gives us a right…

      Point of order: The Constitution does not “give” rights.

  13. an unlawful drug user may regain his right to possess a firearm simply by ending his drug abuse.

    This, of course, glosses over the point that “use” != “abuse”. Which is fairly minor compared to all of the other stupidity here, but may be some kind of stick to poke at Dugan with. Until the 9th says “FYTW”, of course.

  14. I’m not sure I understand the logic here. If you use MJ in any way you may not own a gun. If you use alcohol or pharmaceuticals in any way, you’re FINE? WTF? IS there a big difference between a woman taking her daily SARAFEM (prozac) and another women that uses MJ for chronic pain or insomnia?

  15. If someone has a medical card, they are no long an unlawful user but a lawful one so how can you go about denying them?

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