One case already waiting at the Supreme Court for a decision about certiorari, however, has staked out the same territory as Wilson’s suit: the area between the Second Amendment and a state’s medical marijuana licensing system.
The case is Winters v. Willis, out of Oregon. It involves two consolidated cases in which Oregon sheriffs tried to deny a state concealed carry permit for weapons to citizens because they had Oregon medical marijuana cards, even though state law would otherwise compel issuance of the permit.
The Oregon Supreme Court agreed with the citizens (as did all the lower courts) that the sheriffs had no good reason to deny the carry permit, even if the possession of the marijuana card might, as the sheriffs insisted, mean that the permitted citizens would fall afoul of federal gun possession law, being (presumptively) drug users.
As the Oregon Supreme Court’s May decision read in part:
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 [concealed handgun licenses] 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.
The sheriffs have appealed the case to the Supreme Court, which has not yet decided on whether to hear it, but the very fact the Court asked for reply briefs from both parties means the Court “at least thinks something is worth looking into there,” says Kopel. While the Wilson suit in Nevada and this Oregon case both involve medical marijuana and guns, they don’t address the same issues. Wilson’s is a straight Second Amendment rights case involving how decisions are properly made as to when a citizen falls under one of the prohibited categories in Sect. 922; the Oregon case involves whether federal gun law properly pre-empts a state licensing scheme. The Oregon Supreme Court thought that the federal law’s purpose regarding possession of firearms had no direct effect on the state law, which merely involved the concealment of firearms.
Even if the Supreme Court takes up Winters v. Willis and decides that the sheriffs can deny the CHLs, that would not settle whether denying gun possession rights to someone strictly for having a state medical marijuana card stands up to Second Amendment scrutiny. As Rainey sees it, “it’s only good for us if Winters goes before the Supreme Court, regardless of the outcome” since a Winters loss for medical marijuana card holders would not necessarily guarantee a Wilson loss. One possible connection from this non-lawyer's perspective: Just as the Oregon CHL does not mean that you are in possession of a gun, a Nevada medical marijuana card does not mean you are using marijuana.
Second Amendment scholar Eugene Volokh of UCLA says regarding Wilson's case that “barring everyone from selling a weapon to her because she has a card denies her her Second Amendment rights without actually showing she is an illegal user. That is a plausible claim, but as to whether the Court will buy it, I’m not at all sure. Courts have been open to some Second Amendment claims but obviously they’ve been skeptical of most, so it’s not clear to me how it will come out. But it is a credible claim. What remedy she might get, I assume, will be [not overturning the prohibition entirely but] a declaratory judgment that she is entitled to get a gun so long as there is no other evidence she is a marijuana user.”
Kopel has enough doubts about the way courts react to cases that involve drugs that he isn’t confident her case will succeed on Second Amendment merits. He offers instead that “the ideal solution would be, have a president who keeps his campaign promises. If Obama were keeping his campaign promises in the first place, he could have had his BATFE not write this new policy statement, and it is within their discretion to say that we interpret ‘unlawful user’ to not cover someone regulated and lawful under state law. But the Barack Obama who ran such a good campaign for president was apparently kidnapped and replaced with a body double who is a drug war nut.”
Senior Editor Brian Doherty
Now the ironic part. Here's a qoute by Sherrif Winters " He further stated the US Government will NEVER be allowed to confiscate guns in Jackson County."
So Sheriff Winters wants to deny a law-biding Citizen of her 2nd Ammendment Rights because she was issued a Medical Marijuana Card, and has wasted millions of Tax dollars in this pursuit, even taking it all the way to the Supreme Court, yet bashes Obama on his anti-gun agenda. Hypocrisy?!