Ban on Firearms Sales to Medical Marijuana Card Holders Upheld by Federal Appeals Court

September 9, 2016Alerts Cannabis Alert

A federal ban on the sale of firearms to medical marijuana patients is constitutional, a unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit ruled on Aug. 31, 2016.

In its 30-page decision in Wilson v. Lynch, the Ninth Circuit, which is considered fairly liberal in its interpretation of laws relating to medical marijuana, rejected a Second Amendment challenge to the Federal Gun Control Act of 1968 and an Open Letter to All Federal Firearms Licensees issued by the Bureau of Alcohol, Tobacco, Firearms and Explosives.

The court also rejected a First Amendment argument, holding that although the acquisition of a medical marijuana registry card could be viewed as “expressive conduct” protected by the First Amendment, other “non-speech” elements could be combined with such conduct, which could result in restrictions to First Amendment protections.

The ruling comes in a lawsuit filed by S. Rowan Wilson, who was issued a medical marijuana registry card by the State of Nevada. While marijuana remains a Schedule I substance under the Controlled Substances Act, Nevada’s constitution was amended in 2000 to allow for medical marijuana use. Under Nevada law, a holder of a medical marijuana registry card is exempt from state prosecution for certain marijuana-related activities, including but not limited to, possession, delivery or production of marijuana. Wilson obtained her medical marijuana registry card in May 2011 as an expression of her support for the medical use of marijuana; however, she did not actually use medical marijuana.

Several months after obtaining her registry card, Wilson attempted to purchase a firearm from a firearms dealer who was aware that Wilson held a registry card. The dealer refused to sell a firearm to Wilson based on the Gun Control Act and the Open Letter. Specifically, 18 U.S.C. §922(d)(3) provides, in part, “It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person… is an unlawful user of or addicted to any controlled substance.” Furthermore, the Open Letter issued by the ATF in September 2011 reads, in pertinent part, “any person who uses or is addicted to marijuana, regardless of whether his or her State has passed legislation authorizing marijuana 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.”

After Wilson was denied the ability to purchase a firearm, she filed suit in the U.S. District Court for the District of Nevada alleging, among other things, that the Gun Control Act and the Open Letter violate the Second Amendment because they impede her right to use arms and defend her “hearth and home.” As to the First Amendment claim, Wilson asserted that the Open Letter was part of the government’s attempt to target Wilson’s expressive conduct of acquiring a registry card.

In analyzing Wilson’s Second Amendment claim, the Ninth Circuit cited studies and surveys that demonstrate a strong link between drug use, including marijuana use, and violence. The court stated that, “illegal drug users, including marijuana users, are likely as a consequence of that use to experience altered or impaired mental states that affect their judgment and that can lead to irrational or unpredictable behavior.”

As a result, the court held that the Gun Control Act and the Open Letter are reasonably related to the government’s goal of preventing gun violence and, thus, do not violate the Second Amendment. 

In addition, the court noted that while Title 18 U.S.C. § 922(d)(3) and the Open Letter prevent the sale of firearms to the holder of a medical marijuana registry card, they do not prevent the holder from possessing firearms. Based on the foregoing, the court stated that Wilson could have acquired firearms prior to obtaining a registry card, or that Wilson could surrender her registry card at any time, both of which would allow Wilson to protect herself and her home as permitted under the Second Amendment.

With respect to Wilson’s First Amendment claim, the court agreed that Wilson’s acquisition of a registry card constituted expressive conduct that was protected under the First Amendment. However, the court found that the other conduct giving rise to Wilson’s claim — her attempt to purchase a firearm — was not considered expressive. The court then stated that when expressive and non-expressive elements exist in a single course of conduct, the expressive element, though protected by the First Amendment, could be limited by the government’s interest in limiting the non-expressive element. Here, the court stated that the government’s intent was not to target Wilson’s expressive act of obtaining a registry card, but to accomplish the government’s important interest in preventing gun violence through the enforcement of the Gun Control Act and the Open Letter. Ultimately, the court concluded that any impact of the Open Letter on Wilson’s First Amendment rights was incidental and “no greater than necessary to reduce gun violence.”

While Wilson’s case will likely be appealed, it is unlikely that the U.S. Supreme Court will reach a different conclusion given the studies and surveys that demonstrate a link between drug use and gun violence. Until scientific research shows that marijuana users do not have a propensity for violence, those wishing to purchase firearms must either do so prior to obtaining a registry card or surrender their registry card to fall outside of the proscriptions of the Gun Control Act and the Open Letter.

For more information about this alert or if you have any questions, please contact Tracy A. Gallegos at 702.699.5908 or [email protected] or any member of the firm’s Cannabis Practice

* Please be mindful that possessing, using, distributing and/or selling marijuana is a federal crime, and no legal advice we give is intended to provide any guidance or assistance in violating federal law nor will it provide any guidance or assistance in complying with federal law. Please also note that we are not advising you regarding the federal, state or local tax consequences of engaging in any business in this industry.