firearmslaw.duke.edu
The Coming Clash Between Medical Marijuana and Gun Rights
By
Andrew Willinger on November 7, 2022Categories:
Lawsuits,
Prohibited Persons
On October 28, Delaware Governor John Carney
vetoed a bill intended to allow individuals with a valid medical marijuana prescription to possess a gun under state law. The bill,
H.B. 276, would have “ma[de] clear that an individual is not disqualified under Delaware law from possessing a firearm because the individual is a registered qualifying patient under the Delaware Medical Marijuana Act, if the registered qualifying patient is not” otherwise disqualified under state law. The bill had passed by comfortable majorities in the state house and senate.
In a
letter explaining his decision to veto the bill, Governor Carney wrote that the bill “risks creating confusion about the rights of medical marijuana patients – under federal law – to purchase firearms here in Delaware.” As Governor Carney noted, marijuana remains illegal under federal law and federal law disqualifies unlawful drug users from possessing firearms. The Governor stated that, in his opinion, Delaware law already does not prohibit individuals from possessing guns based on medical marijuana use (because medical marijuana is not defined as a controlled substance under state law)—so, he believes the bill would both add nothing to the state’s framework and risk confusing those who are still prohibited from possessing guns under federal law.
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Addendum: This past Friday, November 4, District Judge Allen Winsor issued
an order granting the government’s motion to dismiss in Fried. The judge “assume[d] . . . that [medical marijuana users] are included in ‘the people’ the Second Amendment protects.” Because marijuana use remains criminal under federal law notwithstanding the Rohrabacher-Farr Amendment, the “tradition of disarming those engaged in criminal conduct” applies to medical marijuana users, the judge found. He also rejected the plaintiffs’ argument that the government was required to point to “an analogous situation in or around 1791 or 1868 where a person who only took actions for which they could not be criminally punished would be considered not ‘law-abiding.’” Judge Winsor found that this standard “demands too much specificity in the historical tradition” and would potentially make the government’s case for disarming any drug user turn on the likelihood of federal prosecution for a drug-specific offense (rather than simply whether that drug is scheduled under federal law). The burden of the current federal restriction, Judge Winsor said, was also “arguably less onerous” than historical laws which permanently removed Second Amendment rights. As to the government’s reliance on historical laws “restricting gun possession of the intoxicated” and mentally ill, Judge Winsor similarly agreed with the government that “habitual drug users are analogous to other groups the government has historically found too dangerous to have guns.” Finally, the judge rejected the claim that federal spending to enforce the “unlawful user” prohibition violates the Rohrabacher-Farr Amendment, even if such enforcement would have an “ancillary deterrent effect” on gunowners seeking to use medical marijuana.]