Can Oregon Deny A Conceal Carry Permit to a User Of Medicinal Marijuana, Which is Legal Under State Law, But Illegal Under Federal Law

July 27th, 2011

Many thanks to Shon Hopwood at The Cockle Bur for sharing with me the Petition for Certiorari in Winters v. Willis. I previously blogged about this case here and here. In this case Respondent, who otherwise met all of the requirements to obtain a concealed carry permit in Oregon, was a user of medicinal marijuana. Under federal law, users of drugs are forbidden from possessing a gun–even if the person can legally use medicinal marijuana under state law. In an opinion issued in May, the Supreme Court of Oregon found┬árelied on the anti-commandeering principles of Printz to find that the federal statute does not pre-empt the state law. Now, the Oregon Sheriff appeals.

According to the petition, there are two questions presented:

1. Is the state law preempted to the extent it requires issuance of a license to a person who is otherwise comprehensively prohibited under federal law from possessing or acquiring a firearm by any means?

2. For purposes of implied-conflict preemption, does the non-obstante provision in the Supremacy Clause preclude speculation about ways in which hypothetical actions of government agencies could theoretically reconcile the conflicting state and federal laws?

Ultimately this case is less about preemption, and more about whether the Supreme Court will let people presumed to be dangerous (drug users) possess firearms. Implicit in McDonald and Heller, and explicit in Ezell, is that the full panoply of Second Amendment rights applies to law-abiding citizens who pose no threat to others. Even though medicinal marijuana is legal under state law, it is still a crime under federal law–and DOJ still prosecutes distributors of medicinal marijuana.┬áThe question in this case cuts across a number of cultural issues–is a user of legalized marijuana a law-abiding citizen, or a dangerous criminal.

My guess is the Court won’t take this petition. It’s just too messy. It doesn’t do much to strengthen Second Amendment rights, as those seeking a concealed carry license are potentially dangerous. Additionally, ruling on preemption one way or another would impact the ability of the Federal Government to regulate medicinal marijuana in other contexts. As we saw in Gonzales v. Raich, the Court is loathe to get involved in that sphere.