The Illinois State Police proposed rulemaking announcement that medical marijuana card users would have to surrender their 2nd Amendment rights to use marijuana as a drug is probably not going to stand constitutional muster in the courts.
The Oregon Supreme Court ruled in 2011 that police have no grounds to strip gun rights from medical marijuana users solely for taking the drug. Here’s a report from the Oregonian.
The Oregon Supreme Court ruled this morning that Oregon sheriffs have no grounds to deny concealed handgun licenses to the state’s 39,774 medical marijuana cardholders — solely because they use pot.
Specifically, the high court said Washington County Sheriff Rob Gordon and Jackson County Sheriff Michael Winters were wrong to deny concealed handgun permits to four law-abiding medical pot users on the basis that doing so would violate the federal Gun Control Act. The act states that “an unlawful user … of any controlled substance” can’t own a gun. The sheriff’s argued that the federal act trumps Oregon’s 13-year-old medical marijuana law, which unlike federal law legalizes pot possession for patients with qualifying ailments and a doctor’s approval.
The Illinois State Police have in recent days proposed to strip all gun rights from any Illinoisan seeking a medical marijuana card – not just concealed carry licenses.
From the Chicago Tribune:
Patients who want to qualify for medical marijuana in Illinois would have to be fingerprinted for a background check and pay $150 a year — and give up their right to own a gun, state officials proposed Tuesday.
The plan outlines how adults who have any of 41 specified medical conditions, such as cancer, AIDS or complex regional pain syndrome, may apply to get a patient registry identification card to purchase medical pot.
We suspect this is going to end up in the courts pretty quickly and we don’t think that bodes well for Illinois taxpayers (who will pick up the tab if the State loses) or the Illinois State Police. From the Oregon Supreme Court decision:
It follows from that “anti-commandeering” principle that Congress lacks authority to require the states to use their gun licensing mechanisms to advance a particular federal purpose. If Congress lacks the constitutional authority to commandeer the state gun licensing statutes in that fashion, then we can hardly imply an intent to commandeer state gun licensing laws from a federal statute that does not even mention them. Congress did not directly require the states to use their gun licensing mechanisms for the purpose of keeping guns out of the hands of marijuana users, and we conclude that Congress did not intend to achieve that same result by making it illegal for medical marijuana users to possess guns. The state’s decision not to use its gun licensing mechanism as a means of enforcing federal law does not pose an obstacle to the enforcement of that law. Federal officials can effectively enforce the federal prohibition on gun possession by marijuana users by arresting and turning over for prosecution those who violate it.
Ultimately, then, we reject the sheriffs’ contention that, to the extent that ORS 166.291 requires county sheriffs to issue CHLs to qualified applicants without regard to their use of medical marijuana, the statute is preempted by the federal prohibition on gun possession by marijuana users at 18 USC section 922(g)(3). The sheriffs cannot justify their denial of the applications at issue on that ground.
The Illinois rule-making also says that caregivers who merely obtain the medical marijuana for medi-marijuana cardholders would also have to surrender their firearm rights as well. Also from the Tribune article:
One new proposal states that a qualifying patient or caregiver may not possess a firearm, even if they have a state firearm owner’s identification card or concealed carry permit, and violators may be subject to sanctions by state police.
Thanks to Todd Vandermyde for providing this information.
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