Second Amendment

9th Circuit Says Medical Marijuana Cardholders Have No Second Amendment Rights

Citing "a strong link between drug use and violence," the appeals court says it's reasonable to stop patients from buying guns.


Nevada Dispensary Association

Yesterday a federal appeals court ruled that banning gun sales to people who hold medical marijuana cards, whether or not they actually use marijuana, does not violate their Second Amendment rights. In reaching that conclusion, the U.S. Court of Appeals for the 9th Circuit relied on antiquated, scientifically unsupportable assumptions about the violent tendencies of cannabis consumers.

The case, Wilson v. Lynch, involves a Nevada woman, Rowan Wilson, who in 2011 tried to buy a firearm from a gun shop in Mound House, a tiny town in Lyon County, but was turned away because the owner, Frederick Hauser, knew she had recently obtained a medical marijuana registry card from the state Department of Health and Human Services. Hauser had just received a letter from the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) that said anyone who uses marijuana as a medicine, "regardless of whether his or her State has passed legislation authorizing marijuana use for medicinal purposes," qualifies as an "unlawful user of a controlled substance" and is therefore forbidden to buy or possess guns under 18 USC 922. The ATF added that "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," meaning "you may not transfer firearms or ammunition to the person." Since violating that edict is a felony punishable by up to 10 years in prison, Hauser was understandably reluctant to sell Wilson a gun.

Two weeks later, Wilson filed a federal lawsuit arguing (among other things) that the ban on gun sales to illegal drug users in 18 USC 922(d)(3), as interpreted by the ATF, violates her constitutional right to keep and bear arms. In 2014 a federal judge rejected that claim, noting that the 9th Circuit had upheld the federal ban on gun ownership by illegal drug users in the 2011 case United States v. Dugan. In yesterday's ruling, the 9th Circuit said Dugan did not dispose of the matter, since Wilson "alleges that, although she obtained a registry card, she chose not to use medical marijuana for various reasons, such as the difficulties of acquiring medical marijuana in Nevada, as well as a desire to make a political statement." The question posed by Wilson's appeal, then, was whether it is constitutional to block gun sales to someone who is not an unlawful user of a controlled substance but is suspected of being one because she has a medical marijuana card. The appeals court decided that rule is constitutional, based on the same silly pharmacological prejudices reflected in Dugan.

The 9th Circuit concedes that the ATF's reading of 18 USC 922(d)(3) "directly burden[s Wilson's] core Second Amendment right to possess a firearm" but says the burden "is not severe," since she could have bought a gun before registering as a medical marijuana patient and could regain her right to buy a gun by "surrendering her registry card." The court therefore applies "intermediate scrutiny," which requires "(1) the government's stated objective to be significant, substantial, or important; and (2) a reasonable fit between the challenged regulation and the asserted objective." Since Wilson concedes that the government's interest in preventing gun violence is substantial, the only question is whether a rule preventing people like her from buying guns is a reasonable way of accomplishing that goal.

"The Government argues that empirical data and legislative determinations support a strong link between drug use and violence," the 9th Circuit notes. The government did not actually present any of that evidence, but that's OK, because "studies and surveys relied on in similar cases suggest a significant link between drug use, including marijuana use, and violence." In case you doubt that marijuana makes people violent, the court adds a few other rationales. "It is beyond dispute," it says, "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." Plus "they are also more likely to have negative interactions with law enforcement officers because they engage in criminal activity," and "they frequently make their purchases through black market sources who themselves frequently resort to violence."

The first two rationales—a link to violence and the possibility of impairment—apply with equal or greater force to alcohol. Would the 9th Circuit think it reasonable to strip all drinkers of their Second Amendment rights? Probably not. The third and fourth rationales—an enhanced risk of "negative interactions" with cops and a need to buy marijuana from possibly violent black-market dealers—are byproducts of prohibition and do not really apply to state-authorized medical marijuana patients, especially those who, like Wilson, never actually use marijuana. Still, the 9th Circuit says, "individuals who firearms dealers have reasonable cause to believe are illegal drug users are more likely actually to be illegal drug users (who, in turn, are more likely to be involved with violent crimes)." Hence a ban on gun sales to medical marijuana cardholders is perfectly consistent with the Second Amendment.

That conclusion extends the logic of Dugan, which held that if felons and people who have undergone forcible psychiatric treatment can constitutionally be deprived of their right to arms, so can illegal drug users. "We see the same amount of danger in allowing habitual drug users to traffic in firearms as we see in allowing felons and mentally ill people to do so," the 9th Circuit said in that case. "Habitual 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 truth is that all of these disqualifying criteria are unfair and unreasonable, especially since they do not necessarily tell us anything about a would-be gun buyer's violent tendencies. One advantage that illegal drug users have over "felons and mentally ill people" is that the federal government usually has no way of knowing which intoxicants they prefer. In Wilson's case, the gun dealer happened to know she was a medical marijuana patient. That will not be the case for the vast majority of medical marijuana users, even in the states that require registration. Recreational users are even less visible. So although they are notionally barred from buying or possessing firearms, they generally can do so in practice, either by lying on ATF Form 4473, which asks about illegal drug use, or by obtaining a gun from someone who is not a federally licensed dealer and is therefore not required to use the form.

Still, dodging the government's arbitrary restrictions on Second Amendment rights is legally perilous. A prohibited person commits a felony by owning a gun, buying a gun, or lying on Form 4473. So does anyone who sells or lends him a gun if he has reason to know the recipient is not allowed to have one. The likelihood that your average pot smoker will be arrested for committing these felonies is currently remote, since there is no central database of illegal drug users and it is impossible to monitor transactions that don't go through licensed dealers. But if politicians like Hillary Clinton have their way, the database of people who are legally disqualified from owning guns will be "improved" (e.g., by adding the names of federal employees or job applicants who fail drug tests), and every transaction will require a form and a background check. So even though Clinton says pot smokers don't belong in prison, that is where she wants to send them if they dare to exercise their constitutional rights.

More on Wilson's case from Brian Doherty here.

NEXT: Brickbat: Messing with Texas

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  1. Once again, a government shyster tells the government to go right ahead and violate our human rights on a flimsy pretext.


    1. only because they cat get away with burning people at the stake anymore

  2. The Court’s reasoning is ludicrous. There’s no way that stands up. Right?

    Fuck, who am I kidding. JFC, what a bunch of cowardly cunts. I hope they all get bone cancer and nothing helps but weed, and their homes get raided at 0200 by federal goons looking for guns.


    Here’s a fun story about bureaucrats at every level failing in every way, resulting in real-world harm to actual people. The response? A promise to institute a process to review preliminary data for red flags, instead of waiting for the whole data set to be finished. Indifference? Check. Unaccountable office drones shirking and buck-passing hard enough to qualify as a cardiovascular workout? Check. Six-figure-salary-collecting “public servants” refusing to talk to the public? Check.


    1. Another reason the 9th circuit is the most reversed circuit court thanks to the scotus.

      1. Until the Dowager Empress gets to appoint a couple of SC justices. Then it’s the 9th Circuit writ large.

    2. Re: OT:

      EPA has a history of delaying the release of data for non-scientific reasons, so much so that internal ethics training (yep, that’s a thing) frequently references it. A while ago the Union of Concerned Scientists released an audit of the agency that drew in part from whistleblowers and surveys of current EPA scientists, and one of the biggest issues in terms of frequency and magnitude was the deliberate withholding or misrepresentation of data from the public for political reasons.

      Keep that in mind next time you hear about the EPA pushing for policy based on the results of their own studies.

  3. Wrong standard.

    RKBA is a fundamental right, strict scrutiny applies.

    It’s like the 9th WANTS to be the most overturned appellate court; or, you know, is setting up a tee for Hill-dog’s SC.

    1. Are you sure a Scalia-less SCOTUS will overturn this?

      1. Once Hillary is President, whatever’s left of the second amendment will be gone, anyway. Along with much of the 1st amendment.

      2. I meant they are setting up a circuit split so Hill-dog’s SC could affirm the 9th.

  4. Most drug violence ,by far,is cause due to the black market. Just as it was with prohibition. Although,if they want to discuss violence and drugs lets look at alcohol. There’s nothing worse than a violent drunk. Yet most people drink with out harming others.

  5. Users are abusers. Duh.

  6. It looks like the judges watched Reefer Madness and derived their decision from the impression it made. Just more proof that the average IQ of judges falls somewhere south of the average IQ of ambulance chasers.

  7. Legal eagles – does the Rohrabacher Amendment apply here? Because it sure looks like the federal government is spending Congressional funds to obstruct the carrying out of California’s medical marijuana law.

    Can anyone help me out here?

    1. Probably not. The Rohrabacher Amendment only says that the DOJ can’t use federal funds in a particular appropriations bill to stop the States listed in the amendment from implementing their “medical marijuana” programs. It does not say anything about the DOJ enforcing existing federal laws about selling firearms to people using illegal drugs and yes, whether you agree with the policy or not, unless and until federal law is changed, marijuana is still illegal in all fifty States even for “medical” reasons.

  8. Laughable. The goddamn bureaucratic retards are running the asylum and making decisions about where the shit gets smeared. Fuck these reprobate judges.


  9. OT – Overheard on the morning news:

    “I flew to Cuba in 2001, and when I got off the plane I didn’t see any Coca-Cola signs!”

    1. I tend not to see Coca Cola signs in airports in the US either. They’re usually in restaurants with cheaper rent.

      1. A lack of Coca-Cola signs are an indication that the food nannies are in control. Why Bloomberg didn’t try to ban Coca-Cola signs in NYC is a mystery to me.

  10. Reefer madness! Now with more science!

  11. Reefer madness! Now with more science!

  12. Reefer madness! Now with more science!

  13. Reefer madness! Now with more science!

  14. Reefer madness! Now with more science!

    1. I’d say your exuberance is actually irrational.

    2. Rational Exuberance shown here.

    3. these christians on their jihad against a plant hate our freedom more than ISIS. maybe obamma still smokes weed and thats why he kills so many civilians in the drone strikes he OK’S?

    4. these christians on their jihad against a plant hate our freedom more than ISIS. maybe obamma still smokes weed and thats why he kills so many civilians in the drone strikes he OK’S?

    5. More Science High loses to Communist Martyrs High School in the 9th!

  15. Never obey

  16. The 9th Circuit … says … she could have bought a gun before registering as a medical marijuana patient and could regain her right to buy a gun by “surrendering her registry card.”

    Right. No problems with those scenarios whatsoever.

    1. If its OK before and after possessing card, then why is it not OK during possessing a card? What if the card expired? Makes no sense.

  17. [Rutgers: to avoid microaggressions, only speak when ‘necessary’]

    Gasped by a website utilizing the fecal facebook plugin for its comments. FUCK YOU, campus reform. What the FUCK shade of shills do your whines erupt from? Fucking douche wands. Evidently your scribes enjoy the communications with pro-facebook commenting? Jesus Gossamer Christ…

    1. They actually do some good work but, yeah, Facebook comments suck.

  18. pretty sure that marijuana makes people less violent, not more.

    Alcohol on the other hand….

  19. 1. The 9th is the flakiest court in the country.
    2. Drug use doesn’t cause violence, “Prohibition” causes violence.

  20. Application for a Med MJ card or arbitrary placement on a no-fly list are equivalent to due process and conviction.

    Got it.

    This should be aggressively pursued by reasonable prosecutors.

    1. Who are we going to get to bring charges against circuit court judges though?

      1. …something something woodchipper….

  21. “The Government argues that empirical data and legislative determinations support a strong link between drug use and violence,” the 9th Circuit notes.

    If you think there’s a strong scientific link between violence and drug use, you should see the scientific link between violence and testosterone. You got testicles? No guns for you. Totally not infringing on the Second.

    1. You got testicles? No guns for you.

      “Anyone subject to raging hormonal influences is not fit to be a mother.”

    2. No, it’s fine. According to the geniuses on the 9th, you’d just surrender your testicles in order to regain the right to buy a gun. No problem there.

    3. This ruling smells exactly like the NAFTA “discussions” with the booze lobby in Ecuador back in the 1990s, The DEA agents carried little brushes in their side pockets to brush off the lapels of the liquor lobbyists from time to time.

  22. It’s an interesting (and stupid) ruling that could also be applied to plenty of legal drugs. Take an amphetamine based drug for ADHD? Possible impulse control problem and increased propensity for violence so no gun for you. Same with SSRIs, benzos, and a host of other drugs too numerous to list. It’s going to be the gun control angle of the future.

    1. No *car* for you either, right? RIGHT?!

  23. Does this mean, broadly, that anyone using a prescription drug is automatically disqualified from buying a gun. It seems that the court’s ruling states this.

    Does this mean that someone taking a prescription drug to help with mental health issues must stop using that drug to buy a gun? I think that’s what the court intended.

    It makes no fucking sense.

    1. Of course it does, Gozer.

      If you’re taking a drug, something must be wrong with you.
      So if you stop taking the drug, you’re OK.

      It’s just simple logic.

      1. The new, improved version of Catch-22.

        1. I like it. If one of those loners then created a vacancy by… nevermind. The perceived as a threat gambit overrides the insanity defense.

    2. Anyone with a record of buying sudafed


  25. A ridiculous opinion. But, hey, that’s what you’ve got when people trot out the 2nd amendment every time someone wants to regulate the sale of guns in the face of high levels of gun violence. You have to justify reasonable restrictions on gun ownership by contorting the law and making up shit about how people who smoke marijuana are violent. Not the people I know that smoke marijuana.

    1. “The ends justify the means.” The rallying cry of authoritarian assholes the world over.

    2. But, hey, that’s what you’ve got when people trot out the 2nd amendment every time someone wants to regulate the sale of guns in the face of high levels of gun violence. You have to justify reasonable restrictions on gun ownership by contorting the law and making up shit about how people who smoke marijuana are violent.

      You “have to”. Just like you “have to” ignore the 4th Amendment in NYC in pursuit of your beloved gun control. That’s a serious leap in logic.

    3. Rape is bad, but that’s what those women get for dressing like sluts.

    4. Right, fuck the 2nd amendment. “Shall not be infringed” means “shall not be infringed except what pleases Team Blue.”

    5. Just want everyone to remember american socialist is a libertarian because he said so.

      Or maybe a more reality based comment

      You keep using that word. I don’t think it means what you think it means.

    6. Go fuck yourself, you gloating commie prick.


  26. Sounds like an infringement to me.
    Or maybe ordering a pizza has become a violent act?
    What was that line from Donovan – “a violent hash smoker shook a chocolate machine” ?

  27. Impeachable. Not that this would ever happen. If those “judges” kinda sorta “accidentally” fell into a running woodchipper, I would pop a bottle of Champagne.

    1. I’m in no way implying that there would be a special place in hell for all of them, either.

      1. Nice? As in France? The DEA in the role of mystical berserkers at the wheel of a juggernaut crushing individual rights?

  28. So does this ruling mean in de facto that no weapons may be sold in the states of Washington and Colorado? Just when I think the courts cannot possible come up with another asinine ruling, in steps the 9th.

    1. Hmmm… unless Colorado and Washington were to seize the federal armories and revenue cutters and file declarations of independence…

  29. How soon until the ATF demands to inspect all marijuana prescriptions? Patient confidentiality is such a quaint concept when you got reefer to war against.

    1. its a drug jihad by the christians controlling big brother government

    2. …and people are shocked to discover that HIPAA doesn’t protect you from the government.

      1. But… but… what about George Waffen Bushy’s Pathrite Enabling Act suspending constitutional rights? Surely we can find protection there, right?

  30. What are the requirements for 9th District judges? I mean, you can bet on the 9th making one asinine ruling after another. There’s got to be some sort of mechanism for winding up with judges who can make predictably shitty rulings on such a consistent basis.

    1. There is, and HL Mencken suggested it when beer was declared a dangerous addictive narcotic and a felony complete with probable cause for deadly force by officers in good faith. He specifically suggested that the first judge to strike down prohibition would be elevated by acclamation to the Supreme Court. I cannot tell you the mechanism for making the vacancy because that would cause federal thought police to suspend Reason’s First Amendment… privileges… again, but I can assure you it had nothing to do with woodchippers.

  31. but smoking crack and then passing unconstitutional laws seems to be perfectly “legal” in the minds of these braindead judges.

  32. Make pot legal or don’t but I have smoked pot since I was 19. I have never raped stolen or murdered anyone. Ask the alcohol consuming part of the population if they can claim the same. The reason pot is illegal is because the timber industry wants it illegal. Check it out. What would happen to the timber companies if hemp was legal. I am now 70 and will continue to smoke and if they throw me in jail I am pretty sure a guard will sell me a joint.

    1. You’re a ticking time bomb! Reefer madness!

    2. Have you tried voting libertarian? Your libertarian vote will work for repeal with 36 times the clout of a vote wasted on the Kleptocracy soft machines.

    3. The timber industry?

      Are you high?

  33. Who’s surprised that putting your name down on a government list as a drug user would come back to bite you?

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  35. RE: 9th Circuit Says Medical Marijuana Cardholders Have No Second Amendment Rights

    This wisdom of the 9th Circus Court of Appeals is indeed heartening. As we all know, MJ is a drug with a well deserved notorious reputation. How many times have we heard MJ users doing bizarre things after they have ingested this evil weed? One can point to such strange and surreal activities as relaxing and enjoying their favorite TV shows, lying down on the couch, having stimulating conversations. These unreal activities have noted my times by mental health care professionals, and they have prudently warned the general public this could happen to them if they were foolish enough to start smoking MJ. Therefore, the 9th Circus Court of Appeals probably wisely took note of the warnings issued by said health care professionals by not allowing a MJ user the right to own a firearm. One could only speculate at the disaster if a MJ user had a gun. Such tragedies as cleaning the gun, taking out the magazine or bullets out it or storing it in a safe place are just many horrifying scenarios a MJ user would take if allowed a firearm. This is another sterling example of The State looking out for the little people’s own good. Thank God for Big Government and their never ending pearls of wisdom they are so kind to share with all us untermenschen!

  36. 1. “The” government violated Reason’s first amendment’s rights in response to Menckenian criticism of its Silk Road decision.
    2. This decison–another Kristallnacht edict–is mystical nationalsocialism run amok, and resembles nothing so much as the Hitler speech on presentation of the Enabling Act to the Reichstag (see Wikipedia)
    3. We really ought to nominate Jacob for a Pulitzer Prize for bringing this outrage to the nation’s attention.

  37. I’m making over $9k a month working part time. I kept hearing other people tell me how much money they can make online so I decided to look into it. Well, it was all true and has totally changed my life. This is what I do…. Go to tech tab for work detail..

  38. If she doesn’t smoke pot, the remedy is for her to surrender her card.

    This isn’t complicated.

  39. 9th Circuit is packed with communists.

    I have a natural right to control and defend my own body
    I own my body
    NOT the centralized socialist state

    FUCK OFF 9th Circuit.

  40. How about people on injected insulin, or for that matter, ANY other pharmaceutical item? It appears that state laws say one thing, federal laws say something else, a situation that does seem problematic.

  41. By the way, isn’t the 9th Circuit the most reversed of the several circuits?

  42. When,I wonder, if ever will The Congress ever stand up and tell the BATFE where to get off?

  43. So anyone who drinks should most certainly never be allowed a gun or a knife for that matter. Who are these complete fucking idiots?

    Time to start a new country.

  44. I’m going to assume the 9th circus court must be full of drunks like Ruth Bader Ginsburg, otherwise drinking would preclude you from gun ownership. But we know whats going on here, don’t we kids. The Progressive Elite is disarming America, one group at a time. Welcome to the New World Order kids. Their heeeereeee….

  45. It just goes to show how disconnected from reality these judges (and politicians) can be. Alcohol is the number one violence-causing drug in America. It’s mere use causes more violence than all the presently illegal drugs combined (which is caused almost exclusively from the fact that they are illegal). Do you think any of those morons on the court drink alcoholic beverages? Of course they do, the effing ignorant hypocrites.

    1. “It just goes to show how disconnected from reality these judges (and politicians) can be.”

      They are not disconnected from reality at all… they are just not upfront about their goals.. which is to completely disarmed citizenry as soon as possible by any means possible. Progressives don’t like citizens who can resist government “helping” them.

      Progressives judges hate the constitution because it restrains government “helping” everyone. So… they rationalize backwards from the result they want to the interpretation they need.

      Reminder> the 2A is an absolute restriction on government with respect to citizens right to bear arms.The founding father knew exactly what they were doing. If they wanted there to be less than a complete bar to government action in this area they would have written more forgiving language into the amendment.

      There is no balancing test provided for; or exceptions for: felons, drug addicts, frequent flyers, whatever. Yet SCOTUS invents a balancing thing out of thin air and somehow this is OK.

      The details change from case to case but the trend is evident an apparently irreversable. Namely that nibble by nibble the 2nd amendment is being “excepted” out of existence.

      Don’t like it? TFB.

  46. Hi, I don’t mind you guys using my image in the article, but could you at least please blur out the address/birthday and such?


  47. So, just issue everyone a medical marijuana card. Instant gun control.

  48. So how about those that drink alcohol? They are much more dangerous.

  49. Yes, you have to justify reasonable restrictions on gun ownership by contorting the law and making up shit about how people who smoke marijuana are violent.

  50. Start working at home with Google! It’s by-far the best job I’ve had. Last Wednesday I got a brand new BMW since getting a check for $6474 this – 4 weeks past. I began this 8-months ago and immediately was bringing home at least $77 per hour. I work through this link, go to tech tab for work detail.

  51. Looks like this ruling is headed to the Supreme Court. The 9th is usually the most overturned appellate court. 86% of it’s 2012 ruling were overturned. The 6th circuit runs close and sometimes ahead of the 9th in reversed rulings.
    Judges whose rulings are frequently overturned should be removed from the bench.

  52. I’m not pro-gun by any means, but I am pro-rights, and this is utterly disgusting. How is it possible that someone who hasn’t been tried & convicted of a crime is penalized as if they have? However., someone with severe mental health issues or a know spousal abuser get a gun without issue and then turn around and kill their spouse and others, or go on a mass shooting spree?

    I’m not a user of marijuana, but again I am pro-science and against unnecessary suffering. The vast body of scientific and social research shows no cause for the hysteria propagated by the government. Moreover, there is overwhelming evidence that marijuana has medical benefits and significantly relieves pain & suffering, in some cases the only effective relief that gives patients back some of their life. The government is already of this, but the politics of fear and lust for power by the failed war on drugs conflict with the known facts. Perhaps this is why marijuana has been banned even for research purposes.

    On the other hand, it’s probably understandable that government agencies, especially those of law enforcement, want to do everything they can to prevent people from acquiring guns. America is on the verge of a revolution, and government officials know they’re targets.

  53. This is pretty unfortunately for Americans. We’re not pro-gun by any means but to base things on the “violent tendencies” that are promoted by marijuana of all things is just silly. We invite anyone who suspects cannabis to cause violence, to try it themselves – preferably a high-CBD strain. Head to a state that has it legalized or get it mail ordered anywhere in Canada:

  54. Two fatal flaws in the Ninth’s reasoning:

    first, the Constitution grants FedGov NO AUTHORITY to control or regulate firearms (or alcohol or tobacco or explosives, whilst we’re at it).

    Second, NOWHERE in the Constitution do FedGov have any grant of authority to “prevent gun violence”. No, THAT job is specifically assigned to WE THE PEOPLE, as members of our local militia and tasked with seeing to “the security of a free state”.

    So, once more, the liberty destroying Ninth gets it dead wrong.

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