The Henny-Penny-knee-jerk reaction and media simplifications are all over the internet about a panel ruling out of the 9th Circuit concerning an attempted purchase of a firearm, medical marijuana and the Second Amendment.
The case itself is called Wilson v. Lynch. Please read it.
Some of my favorite headlines include
- Medical Marijauna Users Have No 2A Rights Says Court
- Puff, Puff But No Gun
- US Court Upholds Ban on Gun Sales to Marijuana Card Holders
- Gun sale bans for medical marijuana users constitutional, US appeals court rules
- Toke Or Tokarev? Ninth Circuit Says Medical Marijuana Patients Can’t Buy Guns
And I get it. I know that in this hyper-competitive news word, you have to have catchy headlines as click bait to get people to your article to see the ads so that your news corporation generates revenue, but what we need to do is to strip fact from fiction and see if it is the bright-line rule that everyone all over the internet is decrying.
This case is really about the difference between 18 U.S.C. §922(d)(3) which makes it illegal to transfer any firearm or ammunition to someone who is an unlawful user or addicted to a controlled substance versus 18 U.S.C. §922(g)(3) which makes it illegal for anyone who is an unlawful user or addicted to a controlled substance to possess a regulated item. The former is focused on the actions of the transferer (the seller) and the latter focuses on the possessor. Big difference.
Bottom line: This case does not directly address possession of a regulated item (GCA or NFA item) and 18 U.S.C. §922(g)(3) by someone who uses medicinal marijuana. It does address whether or not it is illegal in the 9th Circuit for FFLs or anyone to knowingly transfer a regulated item (GCA or NFA item) to someone who is an unlawful user or addicted to a controlled substance.
In essence this case has been misreported by the press and spun all around. It has some very important guidance that those transfer firearms, but the real question that I think most people want a definitive answer on “Will checking no on question 11(e) when I have a medical marijuana license turn me into a criminal?” sadly was not answered.
- Fact: This is a 3-0 panel decision from the 9th Circuit. What this fact means: In law we have two basic types of cases: binding law and persuasive law. Binding law is a holding of a case that comes from a higher court that a lower court within its jurisdiction MUST follow (unless an even higher court overrules it). Persuasive law is law from outside of the jurisdiction and is not binding on the court examining it because it is outside of its jurisdiction. That means that lower courts and equal level courts can look to that other court for guidance but certainly does not have to follow it. This case, the Wilson case, was decided by a panel of the 9th Circuit which includes the federal courts in the states of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington and the territorial courts of Guam and the Northern Mariana Islands. So if you are in one of those states or territories, then yes, you should definitely read this case. If you are outside of it, like us here in Pennsylvania, then you should read it, but it is not binding on our courts. The Third Circuit (which includes Pennsylvania) may disagree.
- Fact: The primary issue that we all care about was never squarely addressed by the panel. Can someone with a medical marijuana card fill out a 4473 that he or she is not an unlawful user or addicted to marijuana or if they check “no” to that question 9question 11e) are they a criminal under 18 USC 922(g)(3)? As we all know, in order to obtain a regulated item from a FFL, we all have to completely fill out a ATF Form 4473. In the 4473 form we find question 11(e). It currently reads: “Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?” In this case Ms. Wilson (the purchaser) decided to leave that question blank on the 4473 and submit it for a NICS background check. Why does this matter: The panel ruled that the District Court properly dismissed Wilson’s initial part of the case that said that in her case with her marijuana card that 922(g)(3) was unconstitutional because she had no standing. Standing is a legal concept that says that only those who are harmed by a law, can challenge the law. Had she checked “no” on question 11(e) and submitted the 4473, there very likely would have been standing (if she was denied), but she would also be open to potential prosecution in Nevada and federally for lying on the 4473 form. The panel found that as she left that answer blank that she had no standing to get that question that we all care about answered. From the case itself “Plaintiff [Wilson] had not alleged that she was an unlawful drug user or that she was addicted to any controlled substance. Nor had she alleged that she possessed or received a firearm.” Therefore the core question of: “Can someone with a medical marijuana card fill out a 4473 that he or she is not an unlawful user or addicted to marijuana or if they check “no” to question 11e can they be convicted under 18 USC 922(g)(3)?” was never reached. Where the tension exists is at 27 C.F.R. §478.11 which defines the operable term as follows:
Unlawful user of or addicted to any controlled substance. A person who uses a controlled substance and has lost the power of self-control with reference to the use of controlled substance; and any person who is a current user of a controlled substance in a manner other than as prescribed by a licensed physician. Such use is not limited to the use of drugs on a particular day, or within a matter of days or weeks before, but rather that the unlawful use has occurred recently enough to indicate that the individual is actively engaged in such conduct. A person may be an unlawful current user of a controlled substance even though the substance is not being used at the precise time the person seeks to acquire a firearm or receives or possesses a firearm. An inference of current use may be drawn from evidence of a recent use or possession of a controlled substance or a pattern of use or possession that reasonably covers the present time, e.g., a conviction for use or possession of a controlled substance within the past year; multiple arrests for such offenses within the past 5 years if the most recent arrest occurred within the past year; or persons found through a drug test to use a controlled substance unlawfully, provided that the test was administered within the past year. For a current or former member of the Armed Forces, an inference of current use may be drawn from recent disciplinary or other administrative action based on confirmed drug use, e.g., court-martial conviction, nonjudicial punishment, or an administrative discharge based on drug use or drug rehabilitation failure.
- Fact: Even if the ruling was as the press reports it, then it should not be shocking to anyone in the industry. Why? As we have blogged before here (Medical Marijuana in Pennsylvania and Gun Rights), since 2011, the BAFTE has taken the position that medical marijuana is a no-no when it comes to firearms when it published its open letter. Also, as we posted before here (A follow up to Medical Marijuana in Pennsylvania and Gun Rights), the proposed new 4473 has added a sentence to make this BAFTE position very clear when it added the following sentence to the new proposed 4473: “Warning: The use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medicinal or recreational purposes in the state where you reside.” Plus, there was the 2011 9th Circuit case (again same jurisdiction so that this panel should not overrule another panel and should defer to that earlier decision) United States v. Dugan, 657 F.3d 998 (9th Cir. 2011), which held that the Second Amendment does not protect the rights of unlawful drug users to bear arms.
- Fact: Wilson plead that she does not use drugs in her complaint. She did admit that she had a medical marijuana card. In a likely attempt to try to sidestep the Dugan case, mentioned above, in that she “allege[d] that, although she obtained a registry card, she chose not to use medical marijuana for various reasons, such as the difficulties of acquiring medical marijuana in Nevada, as well as a desire to make a political statement.” Why does this matter? Again, the question of potential violation of 18 USC 922(g)(3) is not addressed because of the particulars of this case. The panel did find that in this case (and as she alleges that she merely has the medical marijuana license but does not use it) that her 2nd Amendment rights are implicated, but the government (Congress) had a good enough reason to infringe her rights.
So what can we here in Pennsylvania take away from this case?
There is a lot of unpacking to do.
But the one core take away for FFLs in Pennsylvania is that you cannot transfer a regulated item to someone who uses or is addicted to controlled substances. That is nothing new. But what happens if someone presents you a medical marijuana card or they talk about having one during the transfer but they don’t talk about actually using marijuana? For now, the best course of action if someone presents you with a medical marijuana card or talks about having one is to decline the transfer.
For citizens who value the Right to Keep and Bear Arms, when it comes time for Pennsylvania to start issuing medical marijuana cards, you should be very very careful so that you do not run afoul of 18 USC 922(g)(3). Although this case does not directly address 922(g)(3) and someone who has a medical marijuana card, it is clear that the government will not like it and is ready to prosecute you. You do not want to be the test case, I should think. So, it is unfortunate that people who truly need this medicine in the form of marijuana will have to choose between one type of self defense and defense of others through firearm possession as well as the enjoyment of shooting sports versus their doctor prescribed medicine. Sad.