Oregon Medical Marijuana Users Are Entitled to Oregon Licenses to Carry Concealed Guns (Notwithstanding Federal Ban on Gun Possession by Illegal Drug Users)

So holds today’s Oregon Supreme Court decision in Willis v. Winters.

Under federal law, 18 U.S.C. § 922(g)(3), unlawful users of marijuana are generally barred from possessing guns, and this includes medical users (since federal law has no medical marijuana exemption). Does this preempt a state concealed carry licensing law that has no exception for medical marijuana users? No, said the Oregon Supreme Court: The licensing law doesn’t create an affirmative obstacle to the federal marijuana ban, but simply means that Oregon isn’t going to help enforce that ban. Oregon set up the general ban on concealed carry; it is now free to relax that ban by allowing licensing, and it doesn’t matter that some of the licenseholders are barred by federal law from possessing guns — let the federal government enforce its own gun ban if it wishes, but Oregon has no obligation to assist with that. Seems correct to me.

Thanks to How Appealing for the pointer. Here’s an excerpt from the opinion:

In these consolidated cases, the sheriffs of Jackson and Washington counties withheld concealed handgun licenses from persons who met all of the statutory conditions for issuance of such licenses, but who admitted to regular use of medical marijuana pursuant to registry identification cards issued under the Oregon Medical Marijuana Act. When the sheriffs’ actions were challenged in court, the sheriffs responded that, to the extent that Oregon’s concealed handgun licensing scheme does not concern itself with the applicants’ use of medical marijuana, it is preempted by a federal prohibition on the possession of firearms by persons who, under federal law, are “unlawful user[s] * * * of a[] controlled substance.” 18 USC § 922(g)(3)…. We hold that the Federal Gun Control Act does not preempt the state’s concealed handgun licensing statute and, therefore, the sheriffs must issue (or renew) the requested licenses.

Before turning to the facts of the two cases, we describe some of the relevant statutory background. At the outset, we observe that Oregon’s concealed handgun licensing statute does not purport to regulate the possession of firearms. Rather, the statute deals with a particular placement or use of a firearm — the carrying of a firearm concealed on one’s person or its concealment, within the possessor’s reach, in a vehicle. In Oregon, it is a crime — a misdemeanor — to carry a firearm that is concealed in either of those ways. However, that criminal prohibition does not apply to certain specified categories of persons, including “a[ny] person who is licensed under ORS 166.291 and ORS 166.292 to carry a concealed handgun.” …

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, 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 concealment of 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.

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 [state gun carrying law], 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 alsowish 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 (1997). 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. 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.”

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.