The Golden State Continues its Assault on Second Amendment Rights

Medical/Recreational marijuana and guns do not mix, so says the BATFE and Calif. Dept. of Justice

In July, 2014, I was admitted to the outpatient surgery center for a procedure on my left ankle. The procedure was (what the surgeon believed) a great success, and prescribed me Hydrocodone and Oxycodone (around 80 in total quantity) for the pain, which I refused to take. No federal or state agency told me, nor did my doctor (who was aware of the fact that I was a lawful gun owner) advise me that I may be violating federal statutes that prohibit anyone from owning or possessing a firearm while in possession of a current valid prescription for the pain pills. But there is likely no federal rule that prohibits any person from owning or possessing a firearm while prescribed such mind-altering pain medication.

Fast forward two years.

Recently, the United States Court of Appeals for the Ninth Circuit affirmed a lower court’s ruling concerning an open letter published by the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE), which places Federal Firearms Licensees (FFL) on notice that purchasers of firearms are violating federal law when improperly answering question 11e of ATF form 4473. More importantly, the court ruled that the open letter, and the statutes that go along with it, are not unconstitutional, simply because Congress deems marijuana users to be dangerous criminals who (among other things) habitually have run-ins with law-enforcement. This comes after a slew of states like Colorado, Nevada, Oregon, and most recently, California, passed new rules by way of the voters to legalize Marijuana for recreational use.

In the case of Wilson v. Lynch, 835 F.3d 1083 (9th Cir. 2016), S. Rowan Wilson, a Nevada resident was currently not a user of medicinal marijuana, but was still in possession of a valid medical marijuana card. Wilson sought to legally purchase a handgun. The FFL who apparently knew Wilson personally, was also aware of the fact that she possessed such a card. Armed with the ATF open letter, the FFL promptly refused to sell the firearm to Wilson. She then sued the BATFE, alleging (among other things) that the rules and regulations preventing her from purchasing the gun were unconstitutional because they violate many of her Constitutional Rights, including her rights under the Second Amendment.

The case was first heard in the United States District Court for the District of Nevada, where the government prevailed on the logic that Wilson’s Second Amendment claim (and many other claims) failed under not so relevant Ninth Circuit law. Wilson timely appealed, and the Ninth Circuit’s three Judge Panel affirmed the lower court’s ruling.

To make matters even more confusing for gun owners who are seeking to alleviate their chronic medical and physical symptomatic pain with the use of alternative medicine, the court also concluded that “Wilson could have amassed legal firearms before acquiring a registry card, and the open letter would not impede her right to keep her firearms or to use them to protect herself and her home.” (See Wilson, Page 14-15).

It should be an understatement to say that medical and recreational marijuana use among lawful and responsible gun owners will become an issue screaming for attention in not only the courts, but the Congress and States’ Legislatures.

Even more interestingly, the California Department of Justice (CADOJ) recently published an important notice in response to California’s Proposition 64 legalizing marijuana for recreational use. The notice (citing the Wilson case) reiterates the BATFE open letter, and likewise, warns FFLs that marijuana users in states that allow its use both medicinally and recreationally are still in violation of federal statutes if they possess a firearm while simply in possession of a valid medical marijuana registry credential, because the government considers a person to be “an unlawful user” if they are in possession of a current registry card.

California’s former Attorney General, Kamala Harris (who is now a U.S. Senator for California, taking Barbara Boxer’s place) states in the notice that “adults 21 years of age or older may now legally grow, possess, and use marijuana for non-medical purposes with certain restrictions”. Harris further maintains as a matter of law that 18 U.S.C. § 922(d)(3) “makes it 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, a controlled substance.” (Federal Law on Marijuana and Gun Ownership, Dec. 2016).

It is quite interesting to see how California’s Attorney General conveniently left out a number of issues regarding the Wilson ruling in her notice. As an example, the court even recognized that “[i]t may be argued that medical marijuana users are less likely to commit violent crimes, as they often suffer from debilitating illnesses, for which marijuana may be an effective palliative. They also may be less likely than other illegal drug users to interact with law enforcement officers or make purchases through illicit channels.” (See Wilson at*7, n7). I personally do not know of any single medical marijuana registry cardholder who is as much a danger to society as an illicit drug user who (as an example) purchases crack cocaine for use with underage children. The court even went further by stating that “the Government incorrectly conflates registry cardholders with unlawful drug users.” (See Wilson at *17), but hail to the federal statute for purposes of great deference! There may be light at the end of this proverbial tunnel however, because there is an effort underway to bring this case on appeal before the U.S. Supreme Court.

Finally, with these serious issues in mind it is my hope that the Congress can remove the “marijuana” clause from question 11e of ATF Form 4473, and add an exception for it (such as, but not limited to “except for purchasers in states that permit the use of medicinal and/or recreational marijuana”, but I will not, nor should anyone else for that matter, hold their breath. For it would make no sense to think of the notion that a person who owns a firearm, and participates in shooting activities can drink six-packs on a daily basis while actively prescribed medication for legal drugs such as Oxycodone due to post-surgical pain, but are dangers to society at large if they utilize marijuana for medical or recreational use. Go figure.

Erik Royce
Erik Royce, who is the founder and owner of TruckerGuns, is currently a Commercial Truck Driver and Real Estate Investor in California. Royce, a life member of the National Rifle Association and the Second Amendment Foundation, is seeking to educate the American Trucking Industry’s leaders and workers in the areas of lawful gun ownership.