Earlier this year, Justice Clarence Thomas caused a mild sensation among Court watchers when he asked his first question from the bench in a decade. His question to the government’s counsel was why should it be so easy for a citizen to be deprived of his or her rights under the Second Amendment.
That question applies with equal force in a case where state officials have decided to deny gun permits to individuals who have been issued cards enabling them to purchase medical marijuana. Why should the fact that a person could purchase marijuana for medical purposes be grounds for declaring him ineligible to own a gun?
Here are the facts.
A woman who is a Nevada resident, Rowan Wilson, sought to purchase a gun from a firearms store in the town of Mound House in 2011. The owner of the shop (Fred Hauser) however, refused to sell to her because he was aware that she had recently obtained a medical marijuana registry card from the Nevada Department of Health and Human Services.
The reason why that mattered to him was that gun shop owners had received a letter from the federal Bureau of Alcohol, Tobacco, Firearms, and Explosives (BATF) stating that any person who uses marijuana for medical purposes qualifies as an “unlawful user of a controlled substance” and is therefore forbidden to purchase a firearm under federal criminal law.
Therefore, if Hauser had sold Ms. Wilson a firearm, he would have committed a felony since he had “reasonable cause to believe” that she was forbidden by statute to purchase a gun. Much better to lose a sale than to go to jail.
Wilson subsequently filed a lawsuit in federal court arguing that the prohibition against selling firearms to individuals who have been authorized to use medical marijuana is a violation of the Second Amendment. In March of 2014, the court ruled against her, Judge Navarro relying on a Ninth Circuit case, U.S. v. Dugan, where the court had ruled “habitual drug users, like career criminals and the mentally ill, more likely will have difficulty exercising self-control, particularly when they are under the influence of controlled substances.”
That decision, however, is based on, as Forbes contributor Jacob Sullum writes here, “antiquated, scientifically unsupportable assumptions about the violent tendencies of cannabis consumers.” Had the court engaged in more serious analysis than the breezy “intermediate scrutiny” it gave the case, it would have noticed that there were profound differences between the circumstances in Dugan and those of Rowan Wilson.
The plaintiff in the former had been convicted of felonies for illegally selling both weapons and “controlled substances,” but Wilson had never been prosecuted (much less convicted) of anything. Lumping the cases together merely due to the common element of marijuana (which was merely possible future use by Wilson) is slipshod.
Unfortunately, judges who are philosophically inclined to dislike guns and believe that the Second Amendment is “outdated” are prone to deciding cases as if District of Columbia v. Heller had gone the other way.
That is, they’re content to let federal and state officials restrict gun ownership on any pretext — even though the Supreme Court ruled that our rights under the Second Amendment are fundamental. Fundamental rights deserve strict scrutiny before government officials chip away at them, but to the jurists on the Ninth Circuit (and perhaps soon a majority on the Supreme Court), the Second Amendment is a constitutional stepchild.
In a display of true elitism, the Ninth Circuit suggested that Ms. Wilson could easily buy a gun if she were to relinquish her medical marijuana card. But why should American citizens have to choose between two legal rights?
That makes no sense, but then the whole structure of federal firearms control is riddled with nonsense. For example, Reason magazine’s Brian Doherty points out here the odd circumstance that people on the government’s “no fly” list (i.e., people suspected of being a terror threat) are not banned from purchasing guns while people who have a card allowing them to buy medical marijuana are.
Doherty quotes Wilson’s attorney, Chaz Rainey as saying that this “shows the real intent” of the government’s policy. “It has to do with stopping a political movement [for medical pot] by using whatever arrows are in its quiver.” Perhaps, but I think it likely that the authoritarians are more interested in preventing people from buying guns than from buying pot.
Will the U.S. be the least bit safer if Rowan Wilson and others like her are prevented from legally buying firearms? No, but to those individuals, this ruling makes the country less safe for them since they have to decide between getting a medication they need and getting the kind of personal defense they think best.
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