The South Dakota House of Representatives has approved a pair of bills to remind patients that the use of medical marijuana can preclude them from lawfully owning firearms under federal law, with the legislation proposing to require notices of the policy on cannabis patient applications and at dispensaries, which would face daily fines if they don’t comply.
The application-specific measure passed overwhelmingly on Tuesday, in a 68-1 vote. The dispensary bill was then approved with a more divided tally of 42-27.
Rep. Kevin Jensen (R) is the sponsor of both measures, which cleared the House Judiciary Committee last week before heading to the floor.
“This bill does not preclude anyone from getting a medical marijuana card. It doesn’t stop anyone. People are free to make their own choices,” Jensen said on the floor ahead of the votes on Tuesday. “But people should have the information to make an informed decision.”
Jensen said that he’s been a firearms dealer and trainer for decades, and it’s “amazing how many people have no clue that this law even exists.”
The bill to mandate that notices of the federal statute be posted at dispensary entrances and each register or point of sale has proved more contentious, with some industry stakeholders arguing that it imposes an unnecessary burden on the businesses.
Jensen preemptively addressed other concerns on the floor, insisting that the policy would not come at any cost to the dispensaries. He also pointed out that the $250 per day fine that businesses would incur for non-compliance is half the fine that federal regulators impose on applicable stores that fail to post tobacco-related notices.
“It’s just an informative acknowledgement that this law exists, and the only reason for the penalty is so that they conform,” he said.
The sponsor also took a question from another member who asked for clarification on which agency would be responsible for enforcing the policy and collecting fines, which would be directed to the state general fund. Jensen said the Department of Health would check for the signage as part of their routine inspections.
Under the bill, the sign that South Dakota medical cannabis dispensaries would need to post reads:
“WARNING: Federal law prohibits the possession of a firearm by certain individuals who are users of or addicted to marijuana. See 18 U.S.C. § 922(g).”
The legislation would be suspended if the attorney general certifies that “federal law no longer prohibits the possession of a firearm by certain individuals who are users of or addicted to marijuana.”
The Justice Department has insisted on the necessity of the ban in numerous federal courts, arguing at points that people who use marijuana and possess guns pose a unique danger, akin to permitting people with serious mental illness to own firearms.
In November, for example, DOJ told the U.S. Court of Appeals for the Third Circuit that historical precedent “comfortably” supports the restriction. Cannabis consumers with guns pose a threat to society, the Biden administration claimed, in part because they’re “unlikely” to store their weapon properly.
In a brief submitted in that case, attorneys for the Justice Department argued the firearm ban for marijuana consumers is further justified based on historical analogues to restrictions on the mentally ill and habitually drunk that were imposed during the time of the Second Amendment’s ratification in 1791.
The federal government has repeatedly claimed that those analogues provide clear support for limiting gun rights for cannabis users. But several federal courts have separately deemed the marijuana-related ban unconstitutional, leading DOJ to appeal in several ongoing cases.
The Justice Department asserted similar points during oral arguments in a separate but related case before the U.S. Court of Appeals for the Eleventh Circuit in October. That case focuses on the Second Amendment rights of medical cannabis patients in Florida.
Attorneys in both cases have also touched on a U.S. Court of Appeals for the Fifth Circuit ruling from August, Daniels v. United States, that found the ban preventing people who use marijuana from possessing firearms is unconstitutional, even if they consume cannabis for non-medical reasons.
DOJ had already advised the Eleventh Circuit court that it felt the ruling was “incorrectly decided,” and the department’s attorney reiterated that it’s the government’s belief that “there are some reasons to be uncertain about the foundations” of the appeals court decision.
The U.S. District Court for the Western District of Oklahoma also ruled last year that the ban prohibiting people who use marijuana from possessing firearms is unconstitutional, with the judge stating that the federal government’s justification for upholding the law is “concerning.”
In U.S. District Court for the Western District of Texas, a judge ruled in April that banning people who use marijuana from possessing firearms is unconstitutional—and it said the same legal principle also applies to the sale and transfer of guns.
In August, meanwhile, ATF sent a letter to Arkansas officials saying that the state’s recently enacted law permitting medical cannabis patients to obtain concealed carry gun licenses “creates an unacceptable risk,” and could jeopardize the state’s federally approved alternative firearm licensing policy.
Shortly after Minnesota’s governor signed a legalization bill into law last year, the agency issued a reminder emphasizing that people who use cannabis are barred from possessing and purchases guns and ammunition “until” federal prohibition ends.
In 2020, ATF issued an advisory specifically targeting Michigan that requires gun sellers to conduct federal background checks on all unlicensed gun buyers because it said the state’s cannabis laws had enabled “habitual marijuana users” and other disqualified individuals to obtain firearms illegally.
While people who use cannabis are barred from owning firearms under the statute, a little-notice FBI memo from 2019 that recently surfaced shows that the federal government generally does not consider it a violation of the law for medical cannabis caregivers and growers to have guns.
Republican congressional lawmakers have filed two bills in the first half of this current two-year session that focus on gun and marijuana policy.
Rep. Brian Mast (R-FL), co-chair of the Congressional Cannabis Caucus, filed legislation in May to protect the Second Amendment rights of people who use marijuana in legal states, allowing them to purchase and possess firearms that they’re currently prohibited from having under federal law.
Senate Majority Leader Chuck Schumer (D-NY) has committed to attaching that legislation to a bipartisan marijuana banking bill that advanced out of committee in September.
Meanwhile, Mast is also cosponsoring a separate bill from Rep. Alex Mooney (R-WV) this session that would more narrowly allow medical cannabis patients to purchase and possess firearms.
Meanwhile, Sen. Cory Booker (D-NJ) said in July that while he believes the justice system has effectively handled the prosecution against the president’s son, there’s still a double-standard in the country that has allowed presidents and members of Congress to admit to past marijuana use with impunity while subjecting thousands of less privileged people to punitive cannabis laws.
Separately, a proposed ballot measure in Colorado would remove marijuana use as a disqualification for concealed carry permits in the state, potentially allowing people who use the drug to carry concealed firearms in public.
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