News and Best Practices

Need a Gun? Not with a Medical Marijuana Card!

September 27, 2016

If you hold a state medical marijuana card, regardless of who you are and regardless of whether you’re in a state with legal MMJ, you may not be able to buy a gun. You can thank a recent ruling from the Ninth U.S. Circuit Court of Appeals for that.

While the opinion discusses patients directly, it may also affect others in the industry, such as dispensary operators and cultivators—who are often cardholders as well. They may want to own a firearm to protect against robberies. But current MMJ cardholders will continue to be denied the right to purchase a gun from federally licensed dealers based on their cardholder status alone.

The Ninth Circuit (which covers California, Washington, Oregon, Nevada, Arizona, Idaho, Montana, Hawaii, Alaska and Guam) handed down the unanimous ruling on Aug. 31 in a Nevada case, Wilson v. Lynch. Plaintiff S. Rowan Wilson had been denied a gun purchase by a storeowner, due solely to having an MMJ patient card. The storeowner did not allow the sale because he had received an advisement letter distributed on Sept. 21, 2011, by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to all federal firearm dealers. The storeowner knew Wilson was an MMJ cardholder.

“…an unlawful user of or addicted to a controlled substance…”

As the ATF open letter stated, “Any 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…” When a person wants to purchase a firearm from a licensed dealer, the federal government also requires completion of Form 4473, which contains a question asking whether the purchaser is an unlawful user of a controlled substance.

Wilson argued in the Nevada district court that the declarations asserted in the open letter and the regulations associated with the letter and Form 4473 are unconstitutional because they violate the Second Amendment and the Due Process Clause. Wilson also sought to bar enforcement of the regulations. The district court found in favor of the federal government, and it was appealed to the Ninth Circuit.

The circuit court ruled that it is reasonable for the regulations to be implemented to promote gun safety. Being a registered MMJ patient gives reasonable cause to believe that the buyer is an unlawful controlled substance user. The court cited Congress, studies on gun violence and drug use as a basis for their decision. While the court acknowledged that “medical marijuana users may be less likely to commit violent crimes than other illegal drug users it is not enough to overcome the reasonable conclusion that use of drugs raises the risk of irrational and unpredictable behavior which gun use should not be associated.”

The ban will be upheld in the Ninth Circuit; that is, at least until the case can be appealed and the decision possibly overturned. At this point there is no indication from the court opinion that this applies to firearms already owned by MMJ cardholders or to those cardholders who were planning on purchasing from firearm dealers who are not federally licensed. The case could also be used as support by states who wish to deny cardholders applying for a conceal carry permit.

 

By Devon Landis
Dispensary Management Today articles are for informational purposes only and should not be considered legal guidance or advice on dispensary operations. You should contact an attorney or a qualified cannabis consultant for specific compliance and dispensary/retailing advice.
© 2016 CAN Performance Group, LLC. All rights reserved.

 

Sign Up for Cannabis Cultivation Today

© 2017 CAN Performance Group, LLC. All rights reserved.