DOVER, Del. (Jan. 20, 2022) – On Tuesday, a Delaware House committee passed a bill that would help protect the right of authorized medical marijuana patients to buy or possess a firearm in the state despite federal law to the contrary. The measure would also prohibit Delaware police from supplying information on patients to the National Instant Criminal Background Check System (NICS).

Rep. Andria L. Bennett (D) along with a bipartisan coalition of five Republicans and eight Democrats introduced House Bill 276 (HB276) on Jan. 6. Under the proposed law, a person not prohibited from owning or possessing a firearm within the state could not be prohibited from doing so based solely on their status as a registered medical marijuana patient. The legislation also stipulates that a medical marijuana patient is not prohibited from a firearm transaction between “unlicensed persons under § 1448B of Title 11 if the transaction is exempt under § 1448B(c) of Title 11.”

Under the proposed law, Delaware law enforcement officers who encounter a person with a valid medical marijuana card cannot “provide any information from any marijuana-related investigation of the person to any law-enforcement authority that does not recognize the protection of this  chapter, including the National Instant Criminal Background Check System (NICS).” [Emphasis added]

In effect, this would bar information-sharing with the federal government. As HB276 notes, under federal law, marijuana users, including those using cannabis legally under state law, are prohibited from owning firearms.

Federal firearm laws have not kept pace and currently prohibit an individual who is “an unlawful user of or addicted to any controlled substance” from possessing or purchasing a firearm. It is still unlawful under federal law to use or possess marijuana.

If HB276 is enacted, the state of Delaware will effectively stop enforcing federal law as it relates specifically to marijuana and firearms ownership.

On Jan. 18, the House Public Safety & Homeland Security Committee passed HB276 with four “favorable” votes no “unfavorable.”

BACKGROUND

As Suzanne Sherman noted in an article for the Tenth Amendment Center, the federal government has long claimed the power to restrict the right to keep and bear arms of medical marijuana patients:

If you purchase a firearm from an FFL, you will be presented with the Firearms Transaction Record form 4473, which you must, under penalty of perjury, answer fully and truthfully. You may see it for yourself HERE.

Question 11(c) asks prospective gun purchasers if they are unlawfully using any controlled substances. You think, “Hey, I can answer ‘no,’ as marijuana is now legal in my state. Immediately following the inquiry is the following admonition (in bold letters):

Warning: The use or possession of marijuana remains unlawful under Federal law, regardless of whether it has been legalized or decriminalized for medicinal or recreational purposes in the state where you reside.

Not surprisingly, in 2016, the U.S. Ninth Circuit Court of appeals ruled that this restriction does not violate the Second Amendment.

Most states have adopted this federal ban on owning firearms for medical marijuana users, or simply help in its enforcement. In Hawaii, for example, police sent letters to medical marijuana patients who owned guns telling them they had 30 days to surrender their weapons.

While passage of HB276 wouldn’t overturn the federal Gun Control Act of 1968, it would end state and local enforcement of one aspect of that unconstitutional act in Delaware. And as we’ve seen so prominently in immigration sanctuary cities and states with marijuana legalization, when state and local enforcement ends, the federal government has an extremely difficult time enforcing their acts.

Based on James Madison’s advice for states and individuals in Federalist #46, a “refusal to cooperate with officers of the Union” offers an extremely effective method to bring down federal gun control measures because most enforcement actions rely on help, support and leadership from the states. Fox News senior judicial analyst Judge Andrew Napolitano agreed. In a televised discussion on the issue, he noted that a single state taking this step would make federal gun laws “nearly impossible” to enforce.

In 2018, Utah became the first state to pass legislation to help make federal gun bans for medical marijuana patients “nearly impossible” to enforce. The law prohibits expending any state or local resources, including an officer’s time, to “enforce a law that restricts an individual’s right to acquire, own, or possess a firearm based solely on the individual’s possession or use of cannabis in accordance with state medical cannabis laws.”

LEGAL BASIS

The state of Delaware can legally bar state agents from enforcing federal gun control. Refusal to cooperate with federal enforcement rests on a well-established legal principle known as the anti-commandeering doctrine.

Simply put, the federal government cannot force states to help implement or enforce any federal act or program. The anti-commandeering doctrine is based primarily on five Supreme Court cases dating back to 1842. Printz v. U.S. serves as the cornerstone.

“We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policy making is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty”

No determination of constitutionality is necessary to invoke the anti-commandeering doctrine. State and local governments can refuse to enforce federal laws or implement federal programs whether they are constitutional or not.

WHAT’S NEXT

HB276 can either be moved to the full House for further consideration, or it could be referred to a second committee.

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