9th Circuit upholds guidance directing gun dealers to not sell firearms or ammunition to MMJ patients

On August 31, 2016, in Wilson v. Lynch, the United States Court of Appeals for the 9th Circuit upheld the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) directive to all Federal Firearm Licensees (gun dealers) indicating that possession of a medical marijuana card was a sufficient basis to refuse to sell firearms or ammunition.

In September 2011, the ATF sent an open letter to all Federal Firearm Licensees (FFL) stating,

[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.

The statutory basis for this guidance is 18 USC §922(g)(3), which makes it a felony for a person “who is an unlawful user of or addicted to any controlled substance” to possess a firearm. This statute has been upheld in at least two circuits against a 2nd Amendment challenge. Prior to this case, no appellate court had considered the ATF guidance letter.

S. Rowan Wilson had obtained and renewed a Nevada Medical Marijuana Registry Card; however, she maintained that she was not using cannabis therapeutically or otherwise and when she attempted to purchase a firearm from an FFL holder, she had not responded to question 11.e on ATF form 4473. The FFL licensee refused to sell her a firearm, relying on the ATF’s guidance letter above.
 
Ms. Wilson sought declaratory and injunctive relief in the Nevada District Court, which dismissed her complaint for failure to state a claim and denied her leave to amend. In affirming that decision, the 9th Circuit found the inference to be drawn from the mere possession of a state medical marijuana registry card to the conclusion that cardholder was an ‘unlawful drug user’ as that term is used in this statute was reasonable. The Court further held that Ms. Wilson’s 2nd Amendment challenge withheld intermediate scrutiny because of 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,” which the Court described as the ‘link between unlawful drug use and violence’ which justifies the discrimination.

In commenting on this conclusion, NORML Deputy Director Paul Armentano is quoted as saying:

“There is no credible justification for a ‘marijuana exception’ to the US Constitution. Responsible adults who use cannabis in a manner that is compliant with the laws of their states ought to receive the same legal rights and protections as do other citizens. It is incumbent that members of Congress act swiftly to amend cannabis’ criminal status in a way that comports with both public and scientific opinion, as well as its rapidly changing legal status under state laws.”

NCBA founding Board members Judge Shelli Hayes (ret.) and Leland Berger are both quoted as describing the notion that cannabis consumers are violent as "absurd."

NCBA’s Amicus Committee is considering whether to become involved in this litigation as it continues to move through the federal courts.

Leland Berger is a founding NCBA Board Member and leads the NCBA's Amicus Committee. He is a Portland attorney and activist with over three decades in private practice. Leland R. Berger created Oregon Cannabusiness Compliance Counsel, LLC in 2013. 

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Leland Berger

Following over three decades in private practice, the last two decades focusing on representing medical cannabis patients and their providers statewide, Portland attorney, activist, and NCBA Board Member Leland R. Berger created Oregon Cannabusiness Compliance Counsel, LLC in 2013. As Oregon continues to navigate through the process of regulating the production and distribution of both medical and adult use cannabis, Oregon Cannabusiness Compliance Counsel, LLC gathers the best available information to be able to provide the best legal advice.