By: Judith Cassel

In a decision that angered both the right and the left, the 9th Circuit in Wilson v. Lynch, No. 14-15700, 2016 WL 4537376 (9th Cir. August 31, 2016), affirmed the federal prohibition of gun sales to  medical marijuana card holders in states with legalized medical marijuana.  The underlying case concerned a young Nevada woman, Ms. Wilson, who holds and regularly renews her medical marijuana registry card, but claims not to use or possess marijuana.  Ms. Wilson claimed that she only obtained her medical marijuana card as a statement in support of legalized marijuana.

In 2011, after obtaining her medical marijuana card, Ms. Wilson attempted to purchase a gun at a local gun dealership and was denied pursuant to federal law and regulation as well as an advisory letter issued by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF).   Following her denial, Ms. Wilson filed a complaint claiming the denial of her gun purchase violated her First, Second, and Fifth Amendment Constitutional rights.  On August 31, 2016, the 9th Circuit affirmed the lower court’s dismissal of her complaint.

Federal and State Law on Medical Marijuana

Most people are aware that, despite state-legalization of medical marijuana, under federal law, marijuana is still classified as a controlled substance and, as such, is deemed to have no “accepted medical use in treatment.”  21 U.S.C. § 812(b)(1)(B)&(C).  As a matter of federal law, use of controlled substances, even state-sanctioned medical-marijuana use, is a crime.  United States v. McIntosh, No. 15-10117, 2016 WL 4363168, at *11 n.5 (9th Cir. 2016).  Numerous states disagree.  Nevada, for one, provides an exemption to its law criminalizing possession of marijuana.  Nevada exempts a valid medical marijuana card holder from state prosecution for marijuana-related crimes.  Nev. Rev. Stat. § 453A.200.

Federal Firearm Laws and Regulations

Under federal fire arm law, no person “who is an unlawful user of, or addicted to, any controlled substance may possess or receive any firearm or ammunition.” 18 U.S.C. § 922(g)(3).  It is also unlawful under federal law to sell firearms to any person knowing or having reasonable cause to believe that such person is an “unlawful user” of or addicted to any controlled substance.  Id. § 922(d)(3).   ATF regulations define “unlawful user” as:

A person who uses a controlled substance and has lost the power of self-control with reference to the use of controlled substance; and any person who is a current user of a controlled substance in a manner other than as prescribed by a licensed physician.

27 C.F.R. 478.11

At first glance, it seems that Ms. Wilson’s challenge could succeed because she did not fit into the above definition of someone who is “an unlawful drug user” – someone who clearly may not purchase a firearm under ATF regulations.  But, the 9th Circuit ruled that, because Ms. Wilson does not fit the regulatory definition of “unlawful user,” she lacked standing to bring her claims under 18 U.S.C. § 922(g)(3).  However, the 9th Circuit held that Ms. Wilson did have standing to raise her remaining claims challenging 18 U.S.C. § 922(d)(3), 27 C.F.R. § 478.11, and ATF’s Open Letter to All Federal Firearms Licensees (ATF Open Letter), which she claims unconstitutionally burden her individual right to bear arms under the Second Amendment.

The ATF Open Letter at issue is meant to assist firearm dealers in further interpreting ATF’s regulations.  According to the ATF letter:

[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.

The 9th Circuit applied a two-step inquiry to determine whether these laws and regulations violated Wilson’s Second Amendment rights.  The first step was “whether the challenged law burdens conduct protected by the Second Amendment” and second, if so, what is the appropriate level of scrutiny to be applied.  United States v. Chovan, 735 F.3d 1127, 1136 (9th Cir. 2013).

First, the Court considered “whether the challenged law burdens conduct protected by the Second Amendment, based on a historical understanding of the scope of the [Second Amendment] right, or whether the challenged law falls within a well-defined and narrowly limited category of prohibitions that have been historically unprotected.” Jackson v. City & County of San Francisco, 746 F.3d 953, 960 (9th Cir. 2014). The Court found that the Open Letter directly burdened Ms. Wilson’s Second Amendment Right, but applying intermediate scrutiny, the Court held the Government’s interest of violence prevention was reasonable in this context.

With respect to the second prong, the Court reasoned that “laws which regulate only the manner in which persons may exercise their Second Amendment right” or “which leave open alternative channels for self-defense are less likely to place a severe burden on the Second Amendment right.”    The three-judge panel noted that Ms. Wilson could have purchased firearms before obtaining a medical marijuana card or after relinquishing the card and would not have been prohibited from keeping and or using these firearms for protection. Therefore, the Court determined that the contested laws only regulated the manner in which Ms. Wilson could exercise her Second Amendment right.

Next, the Court considered the Government’s argument that studies prove that there is a strong link between drug use, including marijuana, and violence.  Although the Court admonished the Government for not actually including the studies in its submission to the lower court, because Ms. Wilson did not challenge the existence of the studies, methodology or results, the Court had to accept the studies as true.

While acknowledging that registered medical marijuana card holders are not identical to unlawful drug users, the Court stated the association between drug use and firearms presents real risks:

It may be argued that medical marijuana users are less likely to commit violent crimes, as they often suffer from debilitating illnesses, for which marijuana may be an effective palliative. They also may be less likely than other illegal drug users to interact with law enforcement officers or make purchases through illicit channels. But those hypotheses are not sufficient to overcome Congress’s reasonable conclusion that the use of such drugs raises the risk of irrational or unpredictable behavior with which gun use should not be associated.

Wilson, 2016 WL 4537376 at *7.

So, how do these laws, regulations, Open Letter, and Ms. Wilson’s case play out for gun dealerships within the 9th Circuit’s jurisdiction?  When a person attempts to purchase a gun from a gun dealership, that person will be asked to complete ATF Form 4473, which determines a buyer’s eligibility to purchase a gun.  Question 11.e on Form 4473 asks “are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?”  Because marijuana remains illegal under federal law, any medical marijuana card holder must answer yes to this question.  As the 9th Circuit affirmed, if the answer is yes – no sale.