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 “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 could not “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 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 “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.

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

“Under 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.”

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.

“I 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,” he said in his veto statement. “Questions about the long-term health and economic impacts of recreational marijuana use, as well as serious law enforcement concerns, remain unresolved.”

The Delaware House failed to overturn the veto.

BACKGROUND ON FEDERAL GUN LAWS AND MARIJUANA

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 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 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.

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