Charles Feldmann, Esq.
On August 31, 2016, the Ninth Circuit upheld a ban that prevents medical
marijuana cardholders from purchasing a firearm. The case arose when Rowan
Wilson, a Nevada medical marijuana cardholder, attempted to purchase one
from a local dealer in 2011. Medical marijuana is legal in Nevada. However,
the federal government considers marijuana a controlled substance, and
an individual who is an “unlawful user of or addicted to”
marijuana is categorically banned from purchasing both a firearm and ammunition.
A letter sent from the Bureau of Alcohol, Tobacco, Firearms and Explosives
(ATF) to firearms licensees in September of 2011 specifically addressed
the issue of medical marijuana cardholders and gun sales: if a licensee
was aware that an individual attempting to purchase a firearm held a medical
marijuana card,then the licensee had “‘reasonable cause to
believe’ that the person [was] an unlawful user of a controlled
substance.” In such a circumstance, the licensee was banned from
transferring firearms or ammunition to that person, even if the person
didn’t state in the firearms application that they used medical
marijuana. Put succinctly, if a firearms salesman was aware that a customer
held a medical marijuana card, selling a firearm to that person was a
federal crime—one for which he could face up to ten years in prison.
Frederick Hauser, the owner of Custom Firearms &Gunsmithing in Moundhouse,
Nevada, had received this letter only three days before Wilson came to
his store and attempted to make a purchase. Aware that Wilson was a registered
medical marijuana cardholder, he refused to sell her a firearm, even after
she left the controlled substance portion of the application blank.
A few weeks later, Wilson filed a complaint against the government, alleging
that the federal law and the ATF letter violated various constitutional
rights of hers, including her First Amendment right to free speech and
her Second Amendment right to bear arms. In addition, Wilson requested
that the federal law banning controlled substance users from possessing
firearms, along with the ATF letter, be barred from enforcement. In 2013,
the court granted the government’s motion to dismiss her claims,
and Wilson appealed to the Ninth Circuit.
Part of Wilson’s argument was that she did not actually
use medical marijuana. Rather, she had purchased the card as a desire to make
a political statement—a statement, she said, that was protected
by her First Amendment right to free speech. However, taking her assertion
as truthful, the Ninth Circuit found that, because she was therefore “not
actually an unlawful drug user,” she lacked the necessary standing
to bring the suit, meaning that she couldn’t show that the federal
ban had injured her in any way personally.
However, the court agreed with Wilson that the ATF letter and another federal
law had in fact caused her injury, as they’d prevented her from
purchasing a firearm. In contemplating the severity of her injury versus
the government’s interest in gun control, though, the Ninth Circuit
pointed out that Wilson could have purchased the firearm
before becoming a registered medical marijuana cardholder. In addition, they
noted that she also had the option to surrender her medical marijuana
card in order to purchase a firearm.
Wilson argued that these scenarios required that she choose between her
First Amendment right to free speech and her Second Amendment right to
bear arms.The court did not agree. Noting that the ATF letter burdened
only a single form of expression supporting medical marijuana use, the
court found that, aside from this one form of expression, Wilson otherwise
remained free to “advocate vigorously and as publicly as she [wished]
for medical marijuana use while possessing firearms.” Thus, no “constitutional
dilemma” actually existed for her.
Ultimately, the Ninth Circuit upheld the district court’s dismissals.
“Registry cardholders are more likely to be marijuana users, and
illegal drug users, including marijuana users, are more likely to be involved
in violent crimes,” the court explained. “…Accordingly,
preventing those individuals who firearm dealers know have registry cards
from acquiring firearms furthers the Government’s interest in protecting