Wilson v. Lynch: Do Medical Marijuana Users Lose Their Second Amendment Rights?

On August 31, 2016, the Ninth Circuit ruled in the case of Wilson v. Lynch. The defendant in this case was S. Rowan Wilson, a citizen of the small town of Mound House, Nevada, who has possessed, and routinely renewed, a Nevada medical-marijuana registry card since May 12, 2011. On October 4, 2011, Wilson attempted to purchase a firearm from a local gun store and was denied by the dealer. He based this denial upon the contents of an “Open Letter to All Federal Firearms Licensees”  from the Bureau of Alcohol, Tobacco, Firearms, and Explosives (BATFE) regarding firearms sales to those using legal medical marijuana.

The open letter, which was offering advice regarding compliance with 18 U.S.C. § 922(d)(3) and 27 C.F.R. § 478.11, was issued weeks earlier on September 21, 2011. It was received by the federal firearms licensee (FFL) in Wilson’s case only three days before her attempted purchase and advised that “any person who uses . . . marijuana, regardless of whether his or her State has passed legislation authorizing marijuana use for medicinal purposes, is . . . prohibited by Federal law from possessing firearms or ammunition.”

In Wilson’s case, she testified that she was not a user of marijuana but rather had registered for the card as a form of expressive political conduct in support of the legalization effort. This argument failed to persuade the FFL because the open letter went on to advice that

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 [the question on the federal purchase form which asks if a potential transferee is an unlawful user of any controlled substance].

In this case, the FFL was aware of the fact that she held a Nevada medical marijuana registry card. Having just read the open letter, he was keenly aware of the BATFE’s position in this regard. He subsequently denied her purchase and Wilson filed her Second Amendment challenge based upon that denial.

In evaluating Wilson’s challenge, the court first noted the holding from U.S. v. Dugan, 657 F.3d 998, 999 (9th Cir. 2011) regarding the constitutionality of a ban on possession of firearms by unlawful drug users. In Dugan, the court reasoned that

[W]e see the same amount of danger in allowing habitual drug users to traffic in firearms as we see in allowing felons and mentally ill people to do so. Habitual drug users, like career criminals and the mentally ill, more likely will have difficulty exercising self-control, particularly when they are under the influence of controlled substances. . . . Because Congress may constitutionally deprive felons and mentally ill people of the right to possess and carry weapons, we conclude that Congress may also prohibit illegal drug users from possessing firearms.

In Wilson’s case however, the court noted that, if her testimony from the complaint were accepted as true, Wilson is “not actually an unlawful drug user” and therefore, the issue before the court is not within the direct scope of Dugan. Rather, the issue is whether or not the instruction to FFLs contained in the open letter that allowed the FFL to deny her based solely upon her possession of a registry card was a violation of her Second Amendment rights.

In evaluating this question, the court started with the analysis framework from United States v. Chovan, 735 F.3d 1127, 1136 (9th Cir. 2013). The test articulated in Chovan to determine whether a given government action violates the Second Amendment contains two questions. The first is “whether the challenged law burdens conduct protected by the Second Amendment” and the second is to determine the “appropriate level of scrutiny.”

In answering the first question, the court in Wilson held that the answer was “straightforward.” They explained that “by preventing Wilson from purchasing a firearm, 18 U.S.C. § 922(d)(3), 27 C.F.R. § 478.11, and the Open Letter directly burden her core Second Amendment right to possess a firearm.”

Moving on to the second prong of the Chovan test, the court finds that the analysis of which level of scrutiny to use also is a two-step inquiry depending upon “(1) how close the law comes to the core of the Second Amendment right and (2) the severity of the law's burden on the right.” The court reasoned that by completely banning her from purchasing a firearm, the challenged government action went to the heart of her ability “to use arms to defend her ‘earth and home’” which is enumerated as the “core lawful purpose” of the Second Amendment in District of Columbia v. Heller, 554 U.S. 570 (2008).

However, the court went on to find that the “severity of the burden” on the right was not significant given that multiple alternatives channels for firearms ownership are available to Wilson. Specifically they noted that by merely surrendering her registry card she would no longer fall under the prohibited class laid out in the open letter. Because of this lack of a severe burden, the court held that here, under the Chovan analysis, intermediate scrutiny would be the appropriate level of review.

In evaluating the government’s action under intermediate scrutiny, the court noted that intermediate scrutiny “require[s] (1) the government's stated objective to be significant, substantial, or important; and (2) a reasonable fit between the challenged regulation and the asserted objective.” Because Wilson did not challenge the government’s assertion that “empirical data and legislative determinations support a strong link between drug use and violence,” the court accepted that the government’s stated objective satisfied the first requirement of intermediate scrutiny.

Turning to the analysis of whether the “fit” between the legislation and the asserted objective is “reasonable,” the court took note of Wilson’s objection that she was not challenging the ban on sale of firearms to unlawful drug users. Rather, she was “instead challenging a set of laws that bar non-drug users from purchasing firearms if there is only reasonable cause to believe that they are unlawful drug users, for instance, if they hold a registry card.” The court partially agreed, stating that “the degree of fit . . . is not as tight as the fit with laws like 18 U.S.C. § 922(g)(3), which affect only illegal drug users.” They went on to conclude however that “the degree of fit between 18 U.S.C. § 922(d)(3), 27 C.F.R. § 478.11, and the Open Letter and the aim of preventing gun violence is still reasonable, which is sufficient to survive intermediate scrutiny.”

In summary, unless and until federal law is amended to authorize the possession of medical marijuana, attorneys should advise their clients that use of marijuana, even in strict compliance with tightly regulated state frameworks, will strip them of their right to keep and bear arms.

_{John Pierce is with the Law Office of John Pierce, Esq. in Bristol, Virginia.}

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