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, precludes a due process claim under the 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.

UPDATE: Talked this morning to one of Wilson's lawyers, Chaz Rainey. Rainey tells me they definitely plan an appeal to the 9th Circuit. They intend to make the case that the previous 9th Circuit case Dugan on which Judge Navarro relied to dismiss Wilson's case has a different set of facts that don't necessarily apply to Wilson; and indeed that perhaps it was poorly decided to begin with.

"Dugan is like two paragraphs long, no analysis," Rainey says. "Our core argument all along is, Dugan is just wrong and needs to be overturned at least in part. Dugan takes an outlier situation in which we have clear obvious criminal conduct and says, well, because he was dealing in massive amounts of controlled substances, the applicability of this federal law prohibiting him from having firearms is constitutionally justifiable."

The facts from the Dugan decision:

When police officers responded to a report of domestic violence at his home oneafternoon, they discovered his marijuana operation and arrested Defendant. Because Defendant also had a business of dealing in firearms, a jury convicted him of, among other things, shipping and receiving firearms through interstate commerce while using a controlled substance, in violation of§ 922(g)(3).

As Rainey says, "to take that pattern and without further analysis apply it to" a case like Wilson merely having a medical marijuana card isn't analogous.

Rainey thinks it's strange the judge took over a year merely to dismiss the case, and thinks her arguments were too thoughtlessly just parroting what the feds said, including that weird circular argument I noted above in which she seems to say, it doesn't matter if you were declared a drug user without any meaningful due process and thus deprived of Second Amendment rights, because we already said drug users don't have Second Amendment rights.







