Western Medical Marijuana Patients Lose Second Amendment Rights

The last day of August was as full of news on the United States federal medical marijuana front as the rest of the month had been. In news that many in the community had feared, the federal ban on gun sales to medical cannabis users was upheld in the 9th Circuit Court of Appeals, effectively eliminating the second amendment rights for all cannabis patients in the western United States.

This ruling directly applies to 9 states. Several of these states are known for both their hunting as a way of life as well as the fact that there are predators to be protected from. This threat increases when living out of civilized areas. The states within the court’s’ jurisdiction are Alaska, Washington, California, Oregon, Arizona, Montana, Nevada, Idaho and Hawaii.

what_is_9th_cir
ca9.uscourts.gov

The western United States are known not only for their more permissive medical marijuana laws, but also for the abundance of wildlife that remains in the area. This ruling effectively makes the defense against such animals as cougar, coyote and wolves impossible for cannabis patients who are also choosing to live in a homesteading or farm environment. The right to protect their farm animals and themselves has been removed by the federal government.

Law enforcement officers often contend that medical marijuana patients store guns as a criminal act. This is rarely the case. The opportunity to have a legal carry license has now been removed by the United States government for all medical cannabis patients..

This decision came down following a lawsuit filed by a Nevada woman named S. Rowan Wilson, who attempted to purchase a firearm for self-defense in 2011. She had also been recommended medical marijuana by her physician and following her local laws in Nevada, she applied for and was awarded her state card allowing her to legally use the herb medically. In the lawsuit, however, Ms. Wilson contended that she never intended to use cannabis, but that she was getting approved to protest federal laws.

s-rowan-wilson
Facebook.com/srowan.wilsonmba

When a gun store refused to sell her the weapon, they cited a federal rule banning the sale of firearms to illegal drug users. It was her contention that she was following her local laws, so her right to own a firearm for self-defense was entirely reasonable.

 

Cannabis is federally illegal in the United States of America, and the federal Bureau of Alcohol, Tobacco, Firearms and Explosives has issued letters informing gun sellers they should assume a person with a medical marijuana card is a cannabis user.

Although cannabis patients may have assumed by this same court’s decision only weeks ago against prosecuting persons who were following their state’s medical cannabis laws, that this court was favorable to cannabis patients; the court of three had no outliers, it was  a unanimous decision.

The court accepted Ms. Wilson’s allegations that she did not use the herb, concluding that she was, “not actually an unlawful drug user.” In this, they held that plaintiff’s claims did not fall within the direct scope of United States v. Dugan, which held that the Second Amendment does not protect the rights of unlawful drug users to bear arms.

The court did uphold the constitutionality of the “Open Letter” issued by the Bureau of Alcohol Tobacco and Firearms (ATF) on September 21, 2011 to ALL “Federal Firearms Licensees,” stating the following:  

“[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.”

It was only a couple of weeks after this letter was received by Frederick Hauser, the owner of Custom Firearms & Gunsmithing in the small community of Mound House, Nevada where Wilson chose to attempt to purchase a firearm. On October 4, 2011 when Wilson was filling out Form 4473, Hauser stopped her from completing Question 11.e. Asking about the use of controlled substances. Hauser stated in court papers that he knew Wilson held a medical marijuana registry card and was fearful of jeopardizing his federal license to sell firearms if he consented to her sale.

In a footnote of the Opinion filed by Judge Rakoff on August 31, 2016,

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Judge Rakoff

it was stated, “Wilson also argues that the purpose of the Open Letter was to crush the medical marijuana movement. On its face, the Open Letter serves no such purpose, and Wilson has not substantiated her suspicions with any facts.

 

In addition, if the Government had wished to oppose the medical marijuana movement, it would not have needed the Open Letter–it would have needed merely to enforce existing federal statutes as then interpreted.”

The United States government cited several governmental studies that marijuana use increased violence, and Ms. Wilson’s attorney, Chaz Rainey, did not argue against them although the studies were not provided to the court for assessment or validation.

In the decision, Judge Rakoff stated, “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.”

Ms. Wilson’s attorney planned to appeal, “We live in a world where having a medical marijuana card is enough to say you don’t get a gun, but if you’re on the no fly list your constitutional right is still protected,” he said.

(Author’s note: This piece was published first in Everything Medical Marijuana magazine)

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