On August 31, 2016, a three judge panel of the Ninth Circuit U.S. Court of Appeal in Wilson v. Lynch affirmed the dismissal of a complaint alleging that federal statutes, regulations and guidance including the Bureau of Alcohol, Tobacco and Firearm’s (“ATF”) Open Letter to Firearms Dealers, violated the Second Amendment, as well as the First and Fifth Amendments. In so doing, the 9th Circuit upheld the federal prohibition against transferring or selling firearms or ammunition to persons holding a medical marijuana card authorized under state law.
Under 18 U.S.C. §922(g)(3) no person “who is an unlawful user of or addicted to any controlled substance” may “possess . . . or . . . receive any firearm or ammunition.” In addition, it is 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.” Marijuana remains classified as a Schedule I controlled substance under the Controlled Substances Act, 21 U.S.C. §812. (Emphasis added.)
The ATF has promulgated regulations implementing §922 and define a person “who is an unlawful user of or addicted to any controlled substance.” See 27 C.F.R. §478.11. The ATF has also developed Form 4473, which confirms eligibility for gun ownership under §922. Form 4473 includes Question 11.e., which asks “Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?” If the answer is “yes,” the putative transaction is prohibited.
On September 21, 2011, the ATF issued an “Open Letter to All Federal Firearms Licensees” that stated the following:
[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 4473. (Emphasis added.)
In May 2011, S. Rowan Wilson was issued a marijuana registry card by the State of Nevada. Under Nevada law – similar to California law – while marijuana possession remains illegal, a holder of a valid medical marijuana registration ID card (a “registry card”) is exempt from state prosecution for marijuana-related crimes. To acquire a registry card, an applicant must provide documentation from an attending physician affirming that the applicant has a chronic or debilitating medical condition, that the medical use of marijuana may mitigate the symptoms of the condition, and that the physician has explained to the applicant the risks and benefits of the medical use of marijuana. In October 2011, Wilson sought to purchase a firearm from Custom Firearms & Gunsmithing in Moundhouse, Nevada. As Wilson began to fill out ATF Form 4473, the owner of the store stopped her from completing Question 11.e, which asked whether Wilson was an unlawful user of a controlled substance. The owner explained that, because Wilson held a marijuana registry card, Wilson was deemed an unlawful user of a controlled substance and therefore someone to whom he could not sell a firearm without jeopardizing his federal firearms license. Wilson handed the owner Form 4473 with Question 11.e. left blank. The owner, who had received the ATF Open Letter three days earlier refused to sell her a firearm.
Under the Second Amendment, Wilson claimed that 18 U.S.C. §922(d)(3), 27 C.F.R. §478.11, and the Open Letter unconstitutionally burdened her individual right to bear arms. Appellant alleged that she is not actually an unlawful drug user. Instead, she alleged 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.
In analyzing her Second Amendment arguments, the 9th Circuit applied the intermediate scrutiny standard under the two step test set forth in United States v. Chovan (9th Cir. 2013) 735 F.3d 1127. The court stated that “[t]he burden on Wilson’s core Second Amendment right is not severe. Title 18 U.S.C. §922(d)(3), 27 C.F.R. §478.11, and the Open Letter bar only the sale of firearms to Wilson – not her possession of firearms. Wilson could have amassed legal firearms before acquiring a registry card, and 18 U.S.C. §922(d)(3), 27 C.F.R. §478.11, and the Open Letter would not impede her right to keep her firearms or to use them to protect herself and her home. In addition, Wilson could acquire firearms and exercise her right to self-defense at any time by surrendering her registry card, thereby demonstrating to a firearms dealer that there is no reasonable cause to believe she is an unlawful drug user.” (Wilson v. Lynch (9th Cir. Aug. 31, 2016, No. 14-15700) 2016 U.S. App. LEXIS 16108, at *14-16; emphasis added.)
In evaluating the link between illegal drug use and gun violence, the court noted that there is not an “airtight fit” between statutes such as 18 U.S.C. §922(g)(3), which bars illegal drug users from possessing firearms, and regulations that bar the sale of firearms to persons holding medical marijuana registry cards. “Nonetheless, 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. The connection between these laws and that aim requires only one additional logical step: individuals who firearms dealers have reasonable cause to believe are illegal drug users are more likely to be illegal drug users (who, in turn, are more likely to be involved with violent crimes). With respect to marijuana registry cards, there may be some small population of individuals who—although obtaining a marijuana registry card for medicinal purposes—instead hold marijuana registry cards only for expressive purposes. But it is eminently reasonable for federal regulators to assume that a registry cardholder is much more likely to be a marijuana user than an individual who does not hold a registry card.”
“Because the degree of fit between 18 U.S.C. §922(d)(3), 27 C.F.R. §478.11, and the Open Letter and their purpose of preventing gun violence is reasonable but not airtight, these laws will sometimes burden—albeit minimally and only incidentally—the Second Amendment rights of individuals who are reasonably, but erroneously, suspected of being unlawful drug users. However, the Constitution tolerates these modest collateral burdens in various contexts, and does so here as well. For instance, the Fourth Amendment allows an officer to burden an individual’s right to be free from searches when the officer has “reason to believe” the person is armed and dangerous, see Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), a standard comparable to the “reasonable cause to believe” standard of §922(d). Moreover, as previously noted, there are various ways for individuals in Wilson’s position to minimize or eliminate altogether the burdens that 18 U.S.C. §922(d)(3), 27 C.F.R. §478.11, and the Open Letter place on their Second Amendment rights. Accordingly, 18 U.S.C. §922(d)(3), 27 C.F.R. §478.11, and the Open Letter survive intermediate scrutiny, and the District Court did not err in dismissing Wilson’s Second Amendment claims.” (Id. at *16-21.)
The court also applied the intermediate scrutiny standard to Wilson’s allegations that her acquisition of a registry card qualifies as expressive conduct protected by the First Amendment. The court agreed that in the circumstances alleged, Wilson’s acquisition of a registry card falls within the scope of conduct protected by the First Amendment. However, the court found that the Open Letter burdens only a single form of expression in support of medical marijuana use—the holding of a registry card. As the court stated “[o]therwise, Wilson may advocate vigorously and as publicly as she wishes for medical marijuana use while possessing firearms. Moreover, the burden that the Open Letter does place on this single form of expression is minimal. As explained above, Wilson may purchase firearms before acquiring or after surrendering a registry card. As a practical matter, Wilson is not caught in any dilemma, and the Open Letter’s incidental effect on her First Amendment rights is no greater than necessary to reduce gun violence.” (Id. at *27.)
The court similarly rejected Wilson’s argument that the Open Letter violated her procedural due process rights protected by the Due Process Clause of the Fifth Amendment and the Equal Protection Clause as incorporated into the Fifth Amendment. The court held that “Wilson does not have a constitutionally protected liberty interest in simultaneously holding a registry card and purchasing a firearm. Moreover, she has failed to state a procedural due process claim, and the District Court did not err in dismissing her claim…. Title 18 U.S.C. §922(d)(3), 27 C.F.R. §478.11, and the Open Letter survive rational basis scrutiny because they are reasonably related to reducing gun violence, as explained above. Accordingly, the District Court did not err in dismissing Wilson’s Fifth Amendment claims.” (Id. at *27-30.)
Finally, the 9th Circuit upheld the dismissal of Wilsons claims under the Federal Administrative Procedure Act (“APA”). Wilson claimed that the Open Letter violated the APA, because it served as a legislative rule that must go through notice-and-comment procedures under 5 U.S.C. §553(b)&(c). Wilson argued that the Open Letter impermissibly expands 27 C.F.R. §478.11’s definition of an “unlawful user” of illegal drugs to include registry cardholders who use marijuana. Section 478.11 defines an unlawful user as “any person who is a current user of a controlled substance in a manner other than as prescribed by a licensed physician.” The court noted that “under 21 U.S.C. §812, marijuana is a Schedule I controlled substance, meaning that as far as Congress is concerned—marijuana “has no currently accepted medical use in treatment [, and] there is a lack of accepted safety for use of the . . . substance under medical supervision.” 21 U.S.C. §812(b)(1)(B) & (C). No physician may legally prescribe marijuana as a matter of federal law, and no user of medical marijuana is using it “as prescribed by a licensed physician” within the meaning of 27 C.F.R. §478.11.” (Id. at *30-34. The 9th Circuit agreed with the District Court that the Open Letter is “textbook interpretative” – rather than legislative rule – and that it was thus exempt from notice-and-comment procedures under 5 U.S.C. §553(b)(3)(A). (Id. at *34.)
HOW THIS AFFECTS YOUR AGENCY
This decision upholds the federal prohibition – as stated in the ATF’s Open Letter – against transferring or selling firearms or ammunition to persons holding a medical marijuana card authorized under state law. While this case arose in Nevada, it is applicable to all states within the jurisdiction of the 9th Circuit, including California, Oregon and Washington. It is important to emphasize that, as stated in the opinion, 18 U.S.C. §922(d)(3), 27 C.F.R. §478.11, and the Open Letter collectively bar only the sale of firearms to persons holding a medical marijuana card. Simple possession of a firearm by a medical marijuana card holder is not barred by the Open Letter, nor is it affected by this ruling.
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