The Second Amendment and People with Medical Marijuana User Cards

The AP reports that Steve Sarich — who “runs CannaCare, an organization that claims 7,000 members in the state,” which among other things “provides patients with marijuana clones or starter plants and delivers about 50 patients a week with usable marijuana” — has been told by the King County Sheriff’s Office that he may not buy a gun.

The federal law underlying the prohibition is 18 U.S.C. § 922, which bars possession of guns by (among others) anyone “who is an unlawful user of or addicted to any controlled substance,” and bars transfers of guns to such people. The sheriff’s office reported that the FBI’s National Instant Criminal Background Check System “informed us that possession of a medical drug card is sufficient to establish an inference of current use,” and that therefore the sheriff’s office can’t approve the transfer of a gun to Sarich.

Sarich had been trying to buy guns to replace ones seized by investigators who were investigating a burglary and attempted robbery at Sarich’s home; Sarich had shot one of the robbers. Sarich is also being investigated by the Sheriff’s Office “for potential violations of the state’s medical-marijuana law.” The sheriff’s office “insists he was making a handsome profit selling marijuana and starter plants and charging patients for attending the clinics,” and claims that Sarich has had many more plants than he is allowed to possess under state law. But the ostensible reason for the background check coming up with a no-sale result was the possession of the card, not any past conviction — Sarich has not been convicted of the drug crimes that the sheriff’s department is investigating.

Possession of marijuana remains a crime under federal law, notwithstanding any state law exceptions for medical use. The Second Amendment question, I take it, is whether people who violate this law can be barred from acquiring a gun even in the absence of a conviction for violating this law, based simply on an inference (often a plausible inference) that someone with a medical marijuana card is an unlawful user of marijuana.

Thanks to Mike Breeland for the pointer.

UPDATE: I’ve done a bit more research, and here’s what I found: United States v. Purdy, 264 F.3d 809, 812-13 (9th Cir. 2001), stated “that to sustain a conviction under § 922(g)(3), the government must prove … that the defendant took drugs with regularity, over an extended period of time, and contemporaneously with his purchase or possession of a firearm.” Likewise, in United States v. Herrera, 313 F.3d 882 (5th Cir. 2002) (en banc), the government conceded “that, for a defendant to be an ‘unlawful user’ for § 922(g)(3) purposes, his ‘drug use would have to be with regularity and over an extended period of time.'” I don’t see how one can infer from the possession of a marijuana card that the possessor is using marijuana “with regularity and over an extended period of time.” Maybe he is, but maybe he isn’t; I think something more besides the possession of the card would have to be shown.

Here, by the way, is the federal regulation, 27 C.F.R. § 478.11, defining “unlawful user”:

Unlawful user of or addicted to any controlled substance. A person who uses a controlled substance and has lost the power of self-control with reference to the use of controlled substance; and any person who is a current user of a controlled substance in a manner other than as prescribed by a licensed physician. Such use is not limited to the use of drugs on a particular day, or within a matter of days or weeks before, but rather that the unlawful use has occurred recently enough to indicate that the individual is actively engaged in such conduct. A person may be an unlawful current user of a controlled substance even though the substance is not being used at the precise time the person seeks to acquire a firearm or receives or possesses a firearm. An inference of current use may be drawn from evidence of a recent use or possession of a controlled substance or a pattern of use or possession that reasonably covers the present time, e.g., a conviction for use or possession of a controlled substance within the past year; multiple arrests for such offenses within the past 5 years if the most recent arrest occurred within the past year; or persons found through a drug test to use a controlled substance unlawfully, provided that the test was administered within the past year. For a current or former member of the Armed Forces, an inference of current use may be drawn from recent disciplinary or other administrative action based on confirmed drug use, e.g., court-martial conviction, nonjudicial punishment, or an administrative discharge based on drug use or drug rehabilitation failure.

Again, I’m not sure one can infer from the possession of a marijuana card that the possessor is a current user, whose “unlawful use has occurred recently enough to indicate that the individual is actively engaged in such conduct.” While it’s a fair bet that people with marijuana cards have used marijuana at some point, I’m not sure how the police can infer that they have used it “recently enough” to be “actively engaged” in the behavior.