Oregon Supreme Court Holds Medical Marijuana Cardholders Can’t be Denied Concealed Carry Permits, Finds No Preemption

May 19th, 2011

Curiously, the Court relies on the anti-commandeering principles of Printz to find that the federal statute does not pre-empt the state law. Here is the key analysis from the opinion.

The federal statute thus makes it a federal crime for a person who uses marijuana in violation of federal law to possess a firearm in or affecting commerce. The United States Supreme Court has construed section 922(g) in terms of “keep[ing] firearms away from the persons Congress classified as potentially irresponsible and dangerous.” Barrett v. United States, 423 US 212, 218, 96 S Ct 498, 46 L Ed 2d 450 (1976) (construing earlier version of section 922(g)); see alsoDickerson v. New Banner Institute, Inc., 460 US 103, 112 n 6, 103 S Ct 986, 74 L Ed 2d 845 (1983) (in enacting 18 USC § 922(g), Congress sought to keep firearms out of the hands of “presumptively risky people”). Because, under the federal Controlled Substances Act, 21 USC §§ 801- 971, marijuana is a Schedule I controlled substance with no lawful uses, 21 USC § 812(b)(1), (c)(10), marijuana users necessarily are “unlawful users” for purposes of 18 USC section 922(g)(3) — and in a class of persons from whom Congress wishes to keep guns. Thus, the federal “purpose[] and intended effect[]” that is relevant to our inquiry is that of keeping firearms away from marijuana users, without regard to the lawfulness of such use under the laws of their state of residence.

The method Congress chose to accomplish that purpose is to make it a crime for all marijuana users to “possess firearms in or affecting commerce.” Congress did not choose to effectuate its policy by enacting a law governing the conduct of state sheriffs — by, for example, prohibiting state law enforcement officers from issuing gun licenses to marijuana users. Consequently, there is no direct conflict between the federal and state statutes under consideration, in the sense of it being impossible to comply with both.

That leaves us to consider the other potential basis for conflict preemption: Does ORS 166.291, which requires county sheriffs to issue CHLs to qualified applicants even if they use marijuana in violation of federal law, stand as an obstacle to the full accomplishment and exercise of the federal firearms statute’s purpose? The sheriffs contend that it does, because it allows marijuana users — persons who are deemed by Congress to be unqualified to possess firearms — to obtain licenses that effectively authorize their possession of firearms. But, as we have already observed, __ Or at __ (slip op at 1-2), that contention does not accurately reflect the actual terms of the CHL statute. Putting aside the question of whether the CHL statute affirmatively “authorizes” anything, the fact remains that the statute is not directly concerned with the possession of firearms, but with the concealmentof firearms in specified locations — on one’s person or in one’s car. Although, in their briefing, the sheriffs treat that distinction as having no practical significance, there is nothing in the federal preemption analysis that would support that kind of broad brush approach. In fact, it is clear that, when the federal courts attempt to determine whether a state law stands as an obstacle to congressional purposes, they attempt to define the effect of the state statute with considerable precision. See, e.g., Florida Avocado Growers v. Paul, 373 US 132, 144-46, 83 S Ct 1210, 10 L Ed 2d 248 (1963) (California statute that, for purpose of protecting California consumers, prohibited sale of avocados with oil content of less than eight percent, was not preempted by federal standards that established lower oil content for determining when avocados were sufficiently mature to be picked, processed, and transported).

Neither is the statute an obstacle to Congress’s purposes in the sense that it interferes with the ability of the federal government to enforce the policy that the Gun Control Act expresses. A marijuana user’s possession of a CHL may exempt him or her from prosecution or arrest under ORS 166.250(1)(a) and (b), but it does not in any way preclude full enforcement of the federal law by federal law enforcement officials.

In fact, it is possible that the sheriffs in this case could themselves enforce section 922(g)(3) of the federal Gun Control Act against medical marijuana users who possess guns in violation of federal law. The federal act makes such possession illegal, the sheriffs generally are authorized to enforce federal as well as state law, and no state law prohibits the sheriffs from taking such enforcement actions. But it appears that the sheriffs also wish to enforce the federal policy of keeping guns out of the hands of marijuana users by using the state licensing mechanism to deny CHLs to medical marijuana users. The problem that the sheriffs have encountered is that Congress has not enacted a law requiring license denial as a means of enforcing the policy that underlies the federal law, and the state has adopted a licensing statute that manifests a policy decision not to use its gun licensing mechanism for that purpose: State law requires sheriffs to issue concealed gun licenses without regard to whether the applicants use medical marijuana.

In other words, the real thrust of the sheriffs’ argument appears to be that the state’s choice not to use its gun licensing mechanism to enforce the federal policy is preempted, even though the federal law that the sheriffs rely on does not in any way mandate the use of state gun licensing schemes in any particular way. One obvious problem with that position is that it presumes that Congress has authority that, in fact, it does not have. It is well established that the federal government lacks constitutional authority to commandeer the policy-making or enforcement apparatus of the states by requiring them to enact or enforce a federal regulatory program. Printz v. United States, 521 US 898, 925-31, 117 S Ct 2365, 138 L Ed 2d 914 (1997); New York v. United States, 505 US 144, 161-69, 112 S Ct 2408, 120 L Ed 2d 120 (1992). Although the United States Constitution establishes the supremacy of the federal government in most respects, it reserves to the states certain powers that are at the core of state sovereignty. New York, 505 US at 156-61. One expression of that reservation of powers is the notion that Congress lacks authority “to require the states to govern according to Congress’s instructions.” Id. at 162.(8)

It follows from that “anti-commandeering” principle that Congress lacks authority to require the states to use their gun licensing mechanisms to advance a particular federal purpose. If Congress lacks the constitutional authority to commandeer the state gun licensing statutes in that fashion, then we can hardly imply an intent to commandeer state gun licensing laws from a federal statute that does not even mention them. Congress did not directly require the states to use their gun licensing mechanisms for the purpose of keeping guns out of the hands of marijuana users, and we conclude that Congress did not intend to achieve that same result by making it illegal for medical marijuana users to possess guns. The state’s decision not to use its gun licensing mechanism as a means of enforcing federal law does not pose an obstacle to the enforcement of that law. Federal officials can effectively enforce the federal prohibition on gun possession by marijuana users by arresting and turning over for prosecution those who violate it.

Ultimately, then, we reject the sheriffs’ contention that, to the extent that ORS 166.291 requires county sheriffs to issue CHLs to qualified applicants without regard to their use of medical marijuana, the statute is preempted by the federal prohibition on gun possession by marijuana users at 18 USC section 922(g)(3). The sheriffs cannot justify their denial of the applications at issue on that ground.

H/T How Appealing