The Bureau of Alcohol, Tobacco, Firearms, and Explosives has until December 31 to respond to a lawsuit from a medical marijuana card-holder seeking a gun for self-defense.
Within about 50 days from now, the government will have to provide us with an answer,” said Chaz Rainey, the attorney for S. Rowan Wilson, a Nevada healthcare professional who tried to purchase a firearm for self-defense in late September.
Wilson attempted to purchase a firearm for self-defense, but the gun shop owner told her that the ATF issued a regulation just a week before that forbade her purchase, said Rainey.
The ATF said you’re not allowed to sell any firearms to anyone who has a medical marijuana card,” said Rainey.
Fred J. Hauser, the gun shop owner who refused the sale, said that Wilson wanted a gun to replace one she had given her father.
I happened to have a revolver that she wanted—she really liked it—she’d seen it a couple times. She really liked the trigger pull on it,” he said.
I had told her, since I happen to know that she has a medical marijuana card, that I got this ATF letter to all FMLs that stated that even if you use it once a month, you’re addicted to a controlled substance, so I told her, ‘I don’t think we can do this,’” he said.
Rainey said, “The logic of the ATF letter was that if you have this card, you are presumed–without any judge, jury, or facts–you’re presumed to be an unlawful user of marijuana, and therefore under federal law you’re prohibited from owning or possessing a firearm.”
The law preventing illegal drug users from owning guns exists primarily for criminal cases so that courts can levy heavier charges against violent, weapon-related drug crimes than they can against mere unlawful possession, he said.
It’s not applied in situations where we have absolutely no evidence, no trial, no legal process to determine whether or not the person is an illegal user of or addicted to narcotics,” he said.
Rainey said that in Wilson’s case, the ATF has no constitutional authority to issue blanket gun-bans on citizens without any evidence of criminal drug use or addiction. “It’s absurd!”
Citizens in Nevada can work through a process that may take more than six months to get a card allowing medical consumption and cultivation of marijuana, but there exists no provision allowing commercial sale, said Rainey.
Wilson, a healthcare provider who advocates only the medical practices of marijuana, followed all the legal requirements for her card, said Rainey. “She got a doctor’s recommendation back in October of last year.”
However, without a legal provision for supplying medical marijuana, those who possess the card may not actually have any opportunity to use marijuana at all, he said.
There’s no evidence in this case whatsoever that she’s ever even inhaled,” said Rainey.
Even if she were using marijuana, she’s not an unlawful user, because she had that card and she’s complying with the state law,” said Rainey.
Wilson tried to set up a marijuana-based health bakery next door to the gun shop which refused her sale, but abandoned the venture when she discovered that the law did not allow for commercial use of marijuana, said Hauser. “They made it so restrictive she couldn’t actually open or stay open.”
Wilson is responsible and poses no threat to anyone, said Hauser, who has known her for about a year. “I know Rowan. I know how she uses her medical marijuana.”
In Wilson’s case, the BATFE regulation is unfair, said Hauser, but not all medical marijuana users are as responsible as she is. “For most of the other people I know, it’s a really good idea.”
Hauser’s sister dated a medical marijuana user who used to beat her, said Hauser, until Hauser warned the man to stay away from the family for good.
Because Wilson’s case revolves around legal interpretation, Rainey does not envision any kind of jury trial, he said. “This is going to be something the judges have to decide.”
If BATFE does not answer Wilson’s case within 50 days and go to court, they will have to default and pay financial damages, said Rainey.
Rainey hopes that the ATF does not default: this case is about constitutional rights, and in order to make a national difference, they will have to argue the case in court, he said.
This is not a money-maker case,” he said.
Rainey suspects that no matter who wins the trial level court case, someone will appeal, he said.
The case would then probably move to the Ninth Circuit Court, he said.
Whoever loses the Ninth Circuit Court of Appeals would then have the right to file a writ, to file a petition, for writ asociare to the US Supreme Court,” he said.
The liberal tendencies of the Ninth Circuit Court may have interesting impact on this case, said Rainey.
In this case you have very strange bed-fellows. You have the pro-medical marijuana camp, which is traditionally considered fairly liberal, and then you have the pro-gun rights camp, which is traditionally considered very conservative,” he said.
“Does that mean there’ll be a larger cross section of judges willing to support us or a much smaller cross section? Who knows,” he said.
The bill which legalized the use of medical marijuana in Nevada, NRS-436A, passed only at the intense behest of citizen pressure on the legislature, said Rainey.
“There was overwhelming ballot measure, something like 65 to 70 percent, and they passed it twice,” said Rainey.