Legal Commentary

Guns + Medical Marijuana

By Eugene Volokh

From Willis v. Winters, decided today by that wild and crazy Oregon Court of Appeals:

Respondent, the Jackson County Sheriff, appeals a judgment of the circuit court that ordered him to renew a concealed handgun license issued to petitioner, a medical marijuana user. The sheriff concedes that petitioner met the requirements for issuance of a concealed handgun license set forth in ORS 166.291. He nevertheless asserts that Oregon?s concealed handgun licensing statutes are preempted by federal law in this instance, because ?an unlawful user * * * of any controlled substance? cannot lawfully possess a firearm under 18 USC section 922(g) of the federal Gun Control Act. The circuit court rejected the sheriff?s preemption argument and ordered him to issue a renewal of petitioner?s concealed handgun license. We agree with the circuit court?s conclusion that federal law does not preempt this state?s concealed handgun licensing statutes, and we therefore affirm....

The linchpin of the sheriff?s preemption argument is that Oregon?s concealed handgun licensing statutes authorize a licensee to possess a concealed handgun. That is an oversimplified?and incorrect?characterization of the right to bear arms in general, and of the effect of the concealed handgun licensing statutes in particular. The right to possess a handgun does not flow from Oregon?s concealed handgun licensing statutes; the right to carry a firearm is constitutional in origin. Or Const, Art I, § 27 (?The people shall have the right to bear arms for the defence of themselves, and the State, but the Military shall be kept in strict subordination to the civil power[.]?) ....

[T]he circuit court correctly concluded that Oregon?s concealed handgun licensing statutes are not preempted by the federal Gun Control Act. The concealed handgun licensing statutes do not affirmatively authorize controlled substance users to possess handguns; rather, they exempt a licensee from state criminal liability for the possession of a concealed handgun.

Full post as published by The Volokh Conspiracy on June 17, 2010 (boomark / email).