DOVER, Delaware, (Nov. 1, 2022) – Delaware Gov. John Carney (D) vetoed a bill that would have helped protect the right of authorized medical marijuana patients to buy or possess a firearm in the state despite federal law to the contrary. Earlier this year, Carney vetoed a bill to legalize adult-use marijuana.
Rep. Andria L. Bennett (D), along with a bipartisan coalition of five Republicans and eight Democrats, introduced House Bill 276 (HB276) earlier this year. 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 stipulated that a medical marijuana patient is not prohibited from a firearm transaction between โunlicensed persons under ยง 1448B of Title 11 if the transaction is exempt under ยง 1448B(c) of Title 11.โ
Under the proposed law, Delaware law enforcement officers who encounter a person with a valid medical marijuana card could notย โprovide any information from any marijuana-related investigation of the person to any law-enforcement authority that does not recognize the protection of thisย ย chapter,ย including the National Instant Criminal Background Check System (NICS).โ [Emphasis added]
In effect, this law would have barred information-sharing with the federal government. As HB276 noted, 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 โan unlawful user of or addicted to any controlled substanceโ from possessing or purchasing a firearm. It is still unlawful under federal law to use or possess marijuana.
Had HB276 been enacted, the state of Delaware would have effectively stopped enforcing federal law as it relates specifically to marijuana and firearms ownership.
The House passed HB276 by a 41-0 vote. The Senate approved the measure 17-4.
Carney claimed that the proposed law “does not add new meaningful protections or rights for Delawareans” because state law doesn’t specifically define a medical marijuana user as a “person prohibited” from accessing firearms. But this is false. It would have specifically barred state and local police from enforcing federal law and providing information on medical marijuana users to the feds.
Carney also claimed that HB276 would “cause confusion” about
โUnder current federal law, the use of marijuana, even for medical purposes, remains illegal. Federal law and background check processes currently restrict the ability of a user of marijuana, even for medical purposes, from purchasing a firearm. HB 276 would not ease the existing tension between state public health policy and federal drug enforcement policy, nor would it eliminate the complexities and risks that confront Delawareans who are or may become gun owners and medical marijuana users.โ
But enactment of HB276 would have eased existing tension by making it clear that state and local officials were not allowed to enforce the federal law. It would have taken federal law out of the picture at it relates to state and local enforcement.
As Marijuana Moment notes, Carney is “one of the only Democratic governors who remains vocally opposed to adult-use cannabis legalization.”
Earlier this year, Gov. Carney vetoed a bill that would have removed all penalties for adult marijuana possession. HB371 would have allowed adults 21 and over to possess and share up to one ounce of marijuana. In effect, it would have legalized the possession of marijuana, but it would not have allowed for the sale of cannabis.
โI do not believe that promoting or expanding the use of recreational marijuana is in the best interests of the state of Delaware, especially our young people,โ he said in his veto statement. โQuestions about the long-term health and economic impacts of recreational marijuana use, as well as serious law enforcement concerns, remain unresolved.โ
The Delaware House failed to overturn the veto.
BACKGROUND ON FEDERAL GUN LAWS AND MARIJUANA
Asย 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 yourselfย HERE.
Question 11(c) asks prospective gun purchasers if they are unlawfully using any controlled substances. You think, โHey, I can answer โno,โ as marijuana is now legal in my state. Immediately following the inquiry is the following admonition (in bold letters):
โWarning: 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.โ
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 hadย 30 days to surrender their weapons.
While the passage of HB276 would not have overturned the federal Gun Control Act of 1968, it would have ended state and local enforcement of one aspect of that unconstitutional act in Delaware. And as weโve 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 onย James Madisonโs advice for states and individuals inย Federalist #46, a โrefusal to cooperate with officers of the Unionโ 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,ย he noted that a single state taking this stepย would make federal gun laws โnearly impossibleโ to enforce.
In 2018, Utah became the first state to pass legislation to help make federal gun bans for medical marijuana patients โnearly impossibleโ to enforce. Theย law prohibitsย expending any state or local resources, including an officerโs time, to โenforce a law that restricts an individualโs right to acquire, own, or possess a firearm based solely on the individualโs possession or use of cannabis in accordance with state medical cannabis laws.โ
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 theย anti-commandeering doctrine.
Simply put, the federal government cannot force states to help implement or enforce any federal act or program. Theย anti-commandeering doctrineย is based primarily on five Supreme Court cases dating back to 1842.ย Printz v. U.S.ย serves as the cornerstone.
โWe 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 Statesโ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the Statesโ 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 sovereigntyโ
No determination of constitutionality is necessaryย 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.
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