The Second Amendment gives citizens “the right to keep and bear arms.”

May that right be taken away because a person with a chronic or debilitating medical condition holds a state Medical Marijuana Registry Card? That, my friends, is the question of the day.

I’ll Take That Pistol Please

S. Rowan Wilson acquired a Nevada Medical Marijuana Registry Card on May 12, 2011. A few months later, on October 4, 2011, Wilson attempted to purchase a firearm from Custom Firearms and Gunsmithing in the small community of Moundhouse, Nevada.

The firearms dealer knew Wilson had a Medical Marijuana Registry Card and refused to sell — pointing out that he had just received an “Open Letter” from the federal Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF).

Per the Open Letter, the dealer could not sell firearms or ammunition to Wilson, “as 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.”

A Violation of the Second Amendment

Wilson sued the federal government claiming her First and Second Amendment and due process rights had been violated.

She claimed: (1) she did not use marijuana, and (2) there is an insufficient link to medical marijuana users and crimes and addictions to controlled substances.

Wilson argued medical marijuana users are less likely to commit violent crimes as they often suffer from debilitating illnesses for which medical marijuana may be an effective palliative.

Schedule I Controlled Substance

Marijuana is classified as a Schedule I (One) Controlled Substance and under federal law is deemed to have “no currently accepted medical use in treatment [, and] [t] there is a lack of accepted safety for use of the … substance under medical supervision.”

That is not the view of the State of Nevada and eight other western states, including California, Nevada, Oregon and Washington, which issue Medical Marijuana Registry Cards.

Registry Card Holders: Illegal Drug Users

The federal Court of Appeals, in a 3 0 decision, ruled that “individuals whose firearms dealers have reasonable cause to believe are illegal drug users are more likely actually to be illegal drug users (who, in turn, are more likely to be involved with violent crimes”).

I would like to see the evidence of that as to medical marijuana users.

“It is beyond dispute 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.” Wow. “Congress [made a] reasonable conclusion that the reasonable use of such drugs raises the risk of irrational or unpredictable behavior with which gun use should not be associated.”

Indeed, Congress knows all about irrational and unpredictable behavior.

No Firearm for Home Protection

The Court of Appeals ruled against Wilson in her effort to obtain a firearm for home protection determining that federal law classifies marijuana as a Schedule I Controlled Substance which is illegal. If you have a Medical Marijuana Registry Card you probably smoke marijuana, which means you are doing something illegal (under federal law).

“Registry cardholders are more likely to be marijuana users, and illegal drug users, including marijuana users, are more likely to be involved in violent crimes…Accordingly, preventing those individuals who firearm dealers know have registry cards from acquiring firearms furthers the Government’s interest in preventing gun violence.”

Porter’s Take

Given that the use of marijuana under federal law is illegal (while medical marijuana is legal in west coast states), I suppose Congress has the power to pass laws preventing gun ownership to marijuana users, even for medicinal purposes.

It’s the government’s overbroad assertions and the Court’s writing that marijuana users are more likely to be irrational and to commit violent crimes that bothers me.

Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee, Tahoe City and Reno. Jim’s practice areas include: development, construction, business, HOAs, contracts, personal injury, accidents, mediation and other transactional matters. He may be reached at porter@portersimon.com or http://www.portersimon.com.