By Louis K. Bonham
The United States Court of Appeals for the Ninth Circuit has affirmed the dismissal of a Nevada medical marijuana card holder’s challenge to the BATFE’s “Open Letter” to FFL’s, as well as the underlying statutes and regulations. The July 2011 “Open Letter” directed FFL’s not to sell guns or ammunition to users of marijuana, even where such use has been legalized or decriminalized under state law. Put simply, the BATFE’s position is that (emphasis added):
“[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.”
Ms. Wilson is the holder of a medical marijuana card issued by the State of Nevada. When she attempted to purchase a firearm from a Nevada FFL, the store owner stopped her from answering Question 11e on the Form 4473 because he knew she had a medical marijuana card. Wilson then handed in the 4473 with Question 10e left blank.
Having received the BATFE “Open Letter” a few days before, the FFL refused to sell the firearm to her. Wilson then filed suit in federal court, asserting that the BATFE’s position and the underlying statutes and regulations prohibiting illegal drug users from purchasing firearms or ammunition violated her constitutional rights.
Affirming the dismissal of her lawsuit, the Ninth Circuit held that the prohibition on unlawful drug users purchasing firearms or ammunition was not a Second Amendment violation. Citing its previous decision of United States v. Dugan, the Court reasoned that just as felons and the mentally ill can lawfully be prohibited persons, so too can users of illegal drugs.
Interestingly, the Court then sidestepped the Second Amendment issue somewhat by finding that a prohibition on purchasing firearms or ammunition only regulated the manner in which Wilson could exercise her Second Amendment rights, because “Wilson could have amassed legal firearms before acquiring a registry card, and [the law and] the Open Letter would not have impeded her right to keep her firearms or to use them to protect herself and her home.”
The Court therefore applied intermediate, rather than strict, scrutiny to the challenged law, and finding the legislative determination that illegal drug users were “presumptively risky people,” found that the law survived the challenge. The Court found that this was the case even if it accepted Wilson’s position that she did not actually use marijuana and had obtained the registry card as a political statement.
The Ninth Circuit’s opinion was hardly unexpected, given that Court’s usual hostility to Second Amendment rights. Nevertheless, the degree of legal gymnastics the Court had to employ to reach its desired result is surprising.