Thursday, March 13, 2014
Federal law makes it a crime for anyone who is an "unlawful user of or addicted to any controlled substance" to possess a gun or ammunition. It is also illegal to sell a gun to someone you know or have "reasonable cause to believe" is an unlawful user or addicted to a controlled substance.
With the rise of medical marijuana laws and the Supreme Court's determination that the Second Amendment grants an individual right to possess a firearm, is there any problem applying these gun laws to state-recognized medical marijuana patients?
Earlier this week, a Nevada District Court considered and rejected a challenge to these laws by a medical marijuana patient:
In September 2011, because of the growing number of states that permit the medicinal use of marijuana, the ATF issued an "Open Letter." Bureau of Alcohol, Tobacco, Firearms and Explosives, Open Letter, Open Letter to All Federal Firearms Licensees-The use ofmarijuana for medical purpose and its applicability to Federal firearms laws.
Notably, this letter informed all individuals licensed to sell firearms ("Federal Firearms Licensees" or "FFLs") that "if [the seller is] 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." Id. Thus, the letter advised FFLs and provided them notice that the agency which issues their license (the BATFE) interpreted § 922 as not only criminalizing the possession of a firearm by a registry card holder, but also the sale of a firearm to a registry card holder.
In the fall of 2010, due to her struggle with severe dysmenorrhea, Plaintiff applied for and obtained a state marijuana registry card. Plaintiff subsequently applied to purchase a firearm at a gun store in Mound House, Nevada. However, the store's proprietor prevented her from completing her application he knew she carried a state marijuana registry card.
As a result, Plaintiff filed this lawsuit in October 2011. In her suit, Plaintiff challenges the constitutionality of the two provisions of the Gun Control Act that effectively criminalize the sale and possession of a firearm by the holder of a registry card: 18 U.S.C. §§ 922(d)(3) and (g)(3). Plaintiff also challenges the constitutionality of one of the accompanying regulations, 27 C.F.R. § 478.11, that defines the term "unlawful user of or addicted to any controlled substance" as used in §§ 922(d)(3) and (g)(3). Finally, Plaintiff challenges the ATF policy that federal firearms licensees may not sell a firearm to persons they know are "in possession of a card authorizing the possession and use of marijuana under State law . . .." ATF Open Letter. Plaintiff claims that these provisions, along with the ATF policy, violate her Second Amendment right to "keep and bear Arms"; her First Amendment right to free speech; as well as her rights to substantive due process, procedural due process and equal protection as secured by the Fifth Amendment.
In response to Plaintiff's initiating this action, Defendant filed a Motion to Dismiss . . . which, for the reasons discussed below, the Court grants.
A brief search did not turn up a publicly available version of the decision. But it is up on lexis at Wilson v. Holder, 2014 U.S. Dist. LEXIS 31905.