Nevada, quite obviously, loves its guns.
Question 1, an initiative imposing background checks on all firearm purchases (including those between private parties) passed last month, but just barely, and only because of voters in urban Clark County.
But Nevada also loves its marijuana. Voters approved the legalization of recreational marijuana for adults 54.5 percent to 45.5 percent on the same ballot.
Those voters, however, may put some gun-toting, marijuana-toking Nevadans in a bit of a quandary when they show up to purchase their next pistol: It turns out, pot smoking and gun ownership don’t mix, according to the federal government.
A recent piece in the Wall Street Journal points out that Question 11(e) on ATF Form 4473 asks would-be gun buyers if they are unlawful users of marijuana or addicted to the drug. If you’re honest and answer yes, gun-store owners must say no to selling you a firearm. If you lie, you’re subjecting yourself to federal prosecution.
“The Gun Control Act prohibitions are governed by the Controlled Substances Act, and marijuana remains an illegal, controlled substance under federal law,” Justice Department spokesman Peter Carr told the Journal.
And an ATF flier distributed to firearms dealers made it clear the rule applies even to people who use marijuana under a doctor’s prescription: “There are no exceptions in federal law for marijuana purportedly used for medicinal purposes, even if such use is sanctioned by state law.”
Sure, you could turn to the courts for relief, but you’ll find that road has already been trod. Nevada resident S. Rowan Wilson sued the federal government after she was refused a firearm because she’d obtained a Nevada medical marijuana registry card. The 9th U.S. Circuit Court of Appeals upheld the federal rule, based upon the government’s determination that marijuana has no medical value.
According to a summary of the decision, the court admitted the law burdened Wilson’s rights, but concluded, “Applying intermediate scrutiny, the panel nevertheless held that the fit between the challenged provisions and the government’s substantial interest of violence prevention was reasonable, and therefore the district court did not err by dismissing the Second Amendment claim.”
Ah, but what of the neglected 10th Amendment, which specifies the powers not delegated to the federal government by the Constitution are reserved to the states or the people? Didn’t the people just exercise their power by declaring marijuana legal for adults?
They may have, but Nevada state law is still unmistakably clear: NRS 202.360(1)(d) says people may not own firearms if they are an unlawful user of, or addicted to, any controlled substance. (And the definition of controlled substance, the statute specifies, is that contained in federal law.)
All of this to say that — until the Legislature acts to amend state law to carve out an exception for the recently legalized marijuana — a 10th Amendment claim for relief from the federal law will be difficult to make.
Of course, there are those who argue that marijuana should not be a controlled substance at all, or at the very least, should be classified among drugs that do have some medical value. (The Drug Enforcement Administration, however, recently reaffirmed marijuana’s place on the government’s list of banned substances.)
But the point is, for the time being, would-be gun buyers who choose to avail themselves of either medical or recreational marijuana are placing themselves in a precarious position. It’s just one of the many issues that will now have to be resolved — either by the state Legislature or Congress — when it comes to legalized weed.
Steve Sebelius is a Review-Journal political columnist. Follow him on Twitter (@SteveSebelius) or reach him at SSebelius@reviewjournal.com.