Last month, the 9th U.S. Circuit Court of Appeals found that the federal ban on gun sales to medical marijuana patients was constitutional. But since the court's jurisdiction doesn't include Colorado, local patients aren't affected, right?
Not so fast, says marijuana attorney Rob Corry. When asked if the ruling could eventually lead to greater limitations on the ability of Colorado medical marijuana license holders to purchase firearms, Corry replies, "Yes, there is that danger."
The 9th Circuit judgment, on view below, notes that on September 21, 2011, the Bureau of Alcohol, Tobacco, Firearms and Explosives, better known as the ATF, issued an "Open Letter to All Federal Firearms Licensees." It states in part:
[A]ny 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. Such persons should answer “yes” to question 11.e. on ATF Form 4473 . . . and you may not transfer firearms or ammunition to them. Further, if you are aware that the potential transferee is in possession of a card authorizing the possession and use of marijuana under State law, then you have “reasonable cause to believe” that the person is an unlawful user of a controlled substance. As such, you may not transfer firearms or ammunition to the person, even if the person answered “no” to question 11.e. on ATF Form 4473.
Just under two weeks later, Nevada resident S. Rowan Wilson, who'd been issued a marijuana registry card the previous May, headed to Custom Firearms & Gunsmithing, a business in the community of Moundhouse, with the intention of purchasing a gun. The shop's owner, Frederick Hauser, knew that Wilson was an MMJ patient, and when she handed in form 4473 with the question related to controlled substances left blank, he refused to sell the weapon to her. She responded by filing an action against the federal government on October 18.
For the better part of five years, Wilson's complaint worked its way through the judicial system before winding up at the Court of Appeals, which weighed in against her by a 3-0 margin. The decision reads in part:
It 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. But those hypotheses are not sufficient to overcome Congress’s reasonable conclusion that the use of such drugs raises the risk of irrational or unpredictable behavior with which gun use should not be associated.
The ruling pertains directly to the nine states in the circuit: Nevada, Hawaii, Alaska, Washington, Oregon, California, Idaho, Arizona and Montana. But attorney Corry says, "I would think that courts in Colorado would probably look to the 9th Circuit for guidance" if a similar case is filed here. In Corry's view, this likelihood "points out the continued absurdity of federal Schedule I prohibition on marijuana."
Specifically, the federal Drug Enforcement Administration lists cannabis as a Schedule I substance — meaning that it has no accepted medical use. Given that 25 states and the District of Columbia have legalized marijuana for such purposes, this determination strikes many observers as being woefully out of date, and the DEA has pledged to reconsider this situation. In August, however, the agency confirmed that no decision about marijuana scheduling will be made in 2016.
Corry believes that rescheduling cannabis as a Schedule II substance, with accepted medical use, "would be a big step in the right direction." However, he adds, "I don't think it would resolve this issue. Federal law prohibits illegal drug users from using a firearm. So the question is: Would Schedule II make it legal federally?"
His answer: "It may under certain circumstances, and under other circumstances, it might not. It would depend on how the state law was defined. "
At the same time, Corry stresses that "federal law does apply in Colorado" when it comes to firearms and marijuana. "If you buy a gun and you tell the gun seller that you're a medical marijuana card holder, he won't sell you the gun." Moreover, "anyone who purchases a gun has to answer a questionnaire, and one of the questions is, 'Are you an illegal user of drugs?' So technically, a medical marijuana patient who is using cannabis for medical purposes may have to answer that question 'Yes.' Such a person could also, I think, make a truthful argument that they're not an illegal user. But it would be a difficult argument to make in light of the federal law."
These factors combine to make the 9th Circuit ruling "a very negative decision for patients," Corry maintains. "Some of these are very vulnerable people who need protection."
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Here's the 9th Circuit Court decision.