Long-awaited and alas bad news from the case of
Wilson v. Holder,
which I reported on all the way back in December 2011.
Rowan Wilson, then a Nevada-based medical technician in
residential care homes, was not able to buy a gun from a licensed
dealer who was personally acquainted with her and knew she had a
state medical marijuana patient card.
This is because the dealer knew of Bureau of Alcohol Tobacco
Firearms and Explosives (BATFE) rules that stated “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…may not transfer firearms or ammunition to the
person.”
Such a person, the feds insist, would fall afoul
of Sect.
922(g) of the federal criminal code (from
the 1968 federal
Gun Control Act), which says that anyone “who is an
unlawful user of or addicted to any controlled substance” is
basically barred from possessing or receiving guns or
ammo.
Wilson thought that BATFE policy violated her Second
Amendment rights and sued.
To quote from my 2011 reporting:
As the suit says, “Ms. Wilson has never been charged with
or convicted of any drug-related offense, or any criminal
offense….Indeed, no evidence exists that Ms. Wilson has ever been
‘an unlawful user of, or addicted to, marijuana….’ Ms. Wilson
maintains that she is not an unlawful user of or addiction to
marijuana….Nonetheless, Ms. Wilson was denied her Second Amendment
right to keep and bear arms based solely on her possession of a
valid State of Nevada medical marijuana registry card.” The suit
argues the BATFE policy also violated her Fifth Amendment right to
due process since it presumes she is a prohibited drug user
arbitrarily.
An opinion in that case was issued yesterday by U.S.
District Court Judge Gloria Navarro, and it wasn’t good. It upheld
a motion to dismiss the case entirely by the federal government
defendants.
Quoting from the opinion (after saying the defendants
arguments that the case was moot because Wilson’s marijuana card
has expired in the years since the case was filed did not
hold up). Judge Navarro says Wilson’s argument that the ban on drug
users owning guns violates the Second Amendment:
fails as a matter of law because the Ninth Circuit has
already upheld the constitutionality of § 922(g)(3). United
States v. Dugan, 657 F.3d 998, 999–1000 (9th Cir. 2011). In Dugan,
based on the Supreme Court’s acknowledgement that the
individual right to possess and carry weapons is not
unlimited, the Ninth Circuit observed that “[h]abitual 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.”…..The
court further noted an important distinction between
the subsections of § 922 expressly discussed by the Supreme
Court in Heller and 922(g)(3):
[U]nlike people who have been convicted of a felony or
committed to a mental institution and so face a lifetime ban,
an unlawful drug user may regain his right to possess a
firearm simply by ending his drug abuse. The restriction in §
922(g)(3) is far less onerous than those affecting felons and the
mentally ill.
Dugan, 657 F.3d at 999. Therefore, given this distinction and the
danger presented by users of controlled substances, the Ninth
Circuit joined the Seventh and Eighth Circuits by
broadly holding that “Congress may . . . prohibit illegal drug
users from possessing firearms.”
Plaintiff first feebly attempts to discredit Dugan by stating
that Dugan “is a deeply flawed opinion, lacking any meaningful
legal analysis . . ..” However, Dugan remains controlling authority
on this Court. Furthermore, this Court lacks the authority to
overrule a Ninth Circuit decision. ….In light of Dugan, any
amendment of this claim would be futile and, thus, Plaintiff’s
Second Amendment challenge to § 922(g)(3) is dismissed with
prejudice.
Bad precedent makes bad law, and Scalia’s
all-too-forgiving aside in Heller about the
array of gun laws that would still withstand Second Amendment
scrutiny claims another right.
Judge Navarro also denied various claims that either the
underlying statute or BATFE’s application of it violated
Wilson’s rights to First Amendment expression (possession of a
Nevada medical marijuana card is a form of expression she was being
punished for, she argued), that the BATFE’s policy violates the
Administrative Procedures Act, and that there was a substantive due
process claim (denied, if I’m reading it correctly, because a
direct First and Second Amendment claim, already denied, preclude a
due process claim under Fifth Amendment).
Wilson also argued a procedural due process claim: that
merely assuming, as BATFE does, that possessing a medical marijuana
card means she is known to be an illegal drug user violates her
right to due process. Navarro strikes that down thusly:
Plaintiff concludes that Defendants’ determination
that those persons that possess a registry card fit the definition
of an “unlawful user of a controlled substance” deprives her
of a right without adequate procedure…..However, Plaintiff fails
to recognize that she must articulate a “constitutionally
protected liberty or property interest” before her procedural due
process claim may proceed. Therefore, Plaintiff’s discussion
of any procedural inadequacies is insufficient to defeat
Defendants’ Motion to Dismiss. Because Plaintiff cannot identify a
constitutionally protected liberty or property interest, she
cannot state a procedural due process claim and the Court must
dismiss her claim with prejudice.
This seems to be saying, on my read (I’m neither lawyer nor
judge) that, hey, we already said you don’t actually have a Second
Amendment right if you are a drug user, so you can’t make the case
that insufficient procedures for identifying you as a drug user
violate a Second Amendment right. This seems a little circular, but
perhaps I’m misunderstanding it.
I may be speaking later today to Wilson’s lawyers, in
which case I will update; they were not available for comment right
now.
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