Yesterday a federal appeals court ruled that banning gun sales to people who hold medical marijuana cards, whether or not they actually use marijuana, does not violate their Second Amendment rights. In reaching that conclusion, the U.S. Court of Appeals for the 9th Circuit relied on antiquated, scientifically unsupportable assumptions about the violent tendencies of cannabis consumers.

The case, Wilson v. Lynch, involves a Nevada woman, Rowan Wilson, who in 2011 tried to buy a firearm from a gun shop in Mound House, a tiny town in Lyon County, but was turned away because the owner, Frederick Hauser, knew she had recently obtained a medical marijuana registry card from the state Department of Health and Human Services. Hauser had just received a letter from the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) that said anyone who uses marijuana as a medicine, "regardless of whether his or her State has passed legislation authorizing marijuana use for medicinal purposes," qualifies as an "unlawful user of a controlled substance" and is therefore forbidden to buy or possess guns under 18 USC 922. The ATF added that "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," meaning "you may not transfer firearms or ammunition to the person." Since violating that edict is a felony punishable by up to 10 years in prison, Hauser was understandably reluctant to sell Wilson a gun.

Two weeks later, Wilson filed a federal lawsuit arguing (among other things) that the ban on gun sales to illegal drug users in 18 USC 922(d)(3), as interpreted by the ATF, violates her constitutional right to keep and bear arms. In 2014 a federal judge rejected that claim, noting that the 9th Circuit had upheld the federal ban on gun ownership by illegal drug users in the 2011 case United States v. Dugan. In yesterday's ruling, the 9th Circuit said Dugan did not dispose of the matter, since Wilson "alleges that, although she obtained a registry card, she chose not to use medical marijuana for various reasons, such as the difficulties of acquiring medical marijuana in Nevada, as well as a desire to make a political statement." The question posed by Wilson's appeal, then, was whether it is constitutional to block gun sales to someone who is not an unlawful user of a controlled substance but is suspected of being one because she has a medical marijuana card. The appeals court decided that rule is constitutional, based on the same silly pharmacological prejudices reflected in Dugan.

The 9th Circuit concedes that the ATF's reading of 18 USC 922(d)(3) "directly burden[s Wilson's] core Second Amendment right to possess a firearm" but says the burden "is not severe," since she could have bought a gun before registering as a medical marijuana patient and could regain her right to buy a gun by "surrendering her registry card." The court therefore applies "intermediate scrutiny," which requires "(1) the government's stated objective to be significant, substantial, or important; and (2) a reasonable fit between the challenged regulation and the asserted objective." Since Wilson concedes that the government's interest in preventing gun violence is substantial, the only question is whether a rule preventing people like her from buying guns is a reasonable way of accomplishing that goal.

"The Government argues that empirical data and legislative determinations support a strong link between drug use and violence," the 9th Circuit notes. The government did not actually present any of that evidence, but that's OK, because "studies and surveys relied on in similar cases suggest a significant link between drug use, including marijuana use, and violence." In case you doubt that marijuana makes people violent, the court adds a few other rationales. "It is beyond dispute," it says, "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." Plus "they are also more likely to have negative interactions with law enforcement officers because they engage in criminal activity," and "they frequently make their purchases through black market sources who themselves frequently resort to violence."

The first two rationales—a link to violence and the possibility of impairment—apply with equal or greater force to alcohol. Would the 9th Circuit think it reasonable to strip all drinkers of their Second Amendment rights? Probably not. The third and fourth rationales—an enhanced risk of "negative interactions" with cops and a need to buy marijuana from possibly violent black-market dealers—are byproducts of prohibition and do not really apply to state-authorized medical marijuana patients, especially those who, like Wilson, never actually use marijuana. Still, the 9th Circuit says, "individuals who 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)." Hence a ban on gun sales to medical marijuana cardholders is perfectly consistent with the Second Amendment.

That conclusion extends the logic of Dugan, which held that if felons and people who have undergone forcible psychiatric treatment can constitutionally be deprived of their right to arms, so can illegal drug users. "We see the same amount of danger in allowing habitual drug users to traffic in firearms as we see in allowing felons and mentally ill people to do so," the 9th Circuit said in that case. "Habitual 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 truth is that all of these disqualifying criteria are unfair and unreasonable, especially since they do not necessarily tell us anything about a would-be gun buyer's violent tendencies. One advantage that illegal drug users have over "felons and mentally ill people" is that the federal government usually has no way of knowing which intoxicants they prefer. In Wilson's case, the gun dealer happened to know she was a medical marijuana patient. That will not be the case for the vast majority of medical marijuana users, even in the states that require registration. Recreational users are even less visible. So although they are notionally barred from buying or possessing firearms, they generally can do so in practice, either by lying on ATF Form 4473, which asks about illegal drug use, or by obtaining a gun from someone who is not a federally licensed dealer and is therefore not required to use the form.

Still, dodging the government's arbitrary restrictions on Second Amendment rights is legally perilous. A prohibited person commits a felony by owning a gun, buying a gun, or lying on Form 4473. So does anyone who sells or lends him a gun if he has reason to know the recipient is not allowed to have one. The likelihood that your average pot smoker will be arrested for committing these felonies is currently remote, since there is no central database of illegal drug users and it is impossible to monitor transactions that don't go through licensed dealers. But if politicians like Hillary Clinton have their way, the database of people who are legally disqualified from owning guns will be "improved" (e.g., by adding the names of federal employees or job applicants who fail drug tests), and every transaction will require a form and a background check. So even though Clinton says pot smokers don't belong in prison, that is where she wants to send them if they dare to exercise their constitutional rights.

More on Wilson's case from Brian Doherty here.