Following up on my last post – which dealt with the Ninth Circuit’s decision on the Justice Department’s power to proceed with criminal prosecutions under the Controlled Substances Act, in light of an appropriations rider defunding some such prosecutions – the Ninth Circuit yesterday issued another important decision on federal criminal laws related to drugs, this time in the context of federal gun law. The decision in Wilson v. Lynch is here.
It is a federal crime for an unlawful drug user or addict to possess a firearm. 18 U.S.C. 922(g)(3). It is also a federal crime to sell a firearm to a person with knowledge, or reasonable cause to believe, that the person is an unlawful drug user or addict. 18 U.S.C. 922(d)(3). It is further unlawful to manufacture, distribute, dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance (like marijuana). 21 U.S.C. 841(a).
According to the court, Rowan Wilson was issued a Nevada marijuana registry card under Nevada state law. But when she went to purchase a gun from a gun dealer in Nevada, the sale was denied on the ground that she was an unlawful user, or reasonably believed to be, of a controlled substance. The seller was aware of the ATF’s Open Letter of September 21, 2011, which instructs firearms licensees that they cannot sell a gun to someone who is an unlawful user, even if state law allows use of medical marijuana. Wilson filed suit against the Attorney General of the United States and the ATF, challenging the constitutionality of sections 922(g)(3) and 922(d)(3), as well as the Open Letter and the ATF’s implementing regulations (27 C.F.R. 478.11).
The Ninth Circuit held that she lacked standing to challenge section 922(g)(3) because she does not allege that she is an unlawful user or an addict, nor does she allege that she received or possessed a firearm, for which she would be subject to prosecution. But the Ninth Circuit held that she had standing to challenge section 922(d)(3), because the legal standard under that statute prevented her from purchasing a firearm (and thus she was injured). So the court proceeded to consider her constitutional claims on the merits.
The leading issue was whether the laws violated her Second Amendment rights. The Court said it did not. Binding precedent in the Ninth Circuit holds that the Second Amendment does not protect unlawful drug users. See United States v. Dugan, 657 F.3d 998 (9th Cir. 2011). However, the court took it as true that Wilson was not actually an unlawful drug user (she said that although she has a card, she has chosen not to use medical marijuana). So the court could not apply its precedent as applied to someone like Wilson.
Instead, applying another circuit precedent, United States v. Chovan, 735 F.3d 1127 (9th Cir. 2013), that adopts intermediate scrutiny under the Second Amendment, the court said that the federal laws at issue did not severely burden the exercise of her right to possess a firearm; they merely prohibited the sale of a firearm to her. The court further explained that recent research showed a “significant link” between drug use (including marijuana use) and violence, conclusions supported by the legislative branch, as well. “It is beyond dispute,” the court said, “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.” The court also said that such users are more likely to have “negative interactions with law enforcement officers” and to be connected to “black market sources who themselves frequently resort to violence.”
So, despite the fact that registry cardholders and unlawful users are not necessarily the same, there is at least a reasonable fit between the federal laws here and the Government’s interest in reducing gun violence. Even assuming that such laws could lead to some burden on Second Amendment rights, those burdens are minimal, the court held.
The Court also denied Wilson’s challenges based on the First Amendment, the Due Process Clause and the implied equal protection component of the Fifth Amendment, and the Administrative Procedures Act.
One key to understanding the significance of the issues in this case is the court’s assessment of the links between marijuana use and violence. Although this assessment could have been more comprehensive in the opinion, it is worthy of serious consideration, and undermines many of the arguments made by advocates of more liberal marijuana laws. Another key, though, is the holding that Wilson did not have standing to challenge section 922(g)(3). In holding that the challenged laws – 922(d)(3), the regs, and the Open Letter – did not severely burden her core Second Amendment rights, the court relied upon the fact that she could have amassed guns before getting her registry card, and that she could have surrendered her registry card later in order to buy a gun. See Slip op. at 14-15. But the point of her challenge was to say that, as long as she is a registry card holder, she now cannot lawfully possess a gun for purposes of self-defense because of section 922(g)(3). Is it, then, illusory to say that the sale provisions do not severely burden her rights, when she could not lawfully possess a gun anyway? In other words, Wilson might say, while the sale ban in federal law might not have severely burdened her rights, the possession ban does. Hence the importance of the finding that she did not have standing to challenge the possession statute.
Although the result may turn out to be the same – particularly if based on the link between drug use and violence and the reasonableness of the Government’s interests in forbidding gun possession by drug users – this question would at least be far trickier for federal courts if it is brought by someone with standing to challenge the possession ban of section 922(g)(3).