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ISP may be on thin ice with their gun prohibition to medical marijuana users and caregivers

January 23, 2014

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.

 

 

4 Responses to ISP may be on thin ice with their gun prohibition to medical marijuana users and caregivers

  1. Bill1 on January 23, 2014 at 3:19 pm

    Will the NRA or ISRA fight this in court? To loose your rights for a health problem like cancer is sick.

    I have read that marijuana is one of the most powerful cancer fighters we have in the herbal world but I dont think its from smoking, maybe a tea or a tincture but if your sick and need help the thought of giving up your 2A rights is BS.

  2. Duncan20903 on January 23, 2014 at 7:48 pm

    Willis v Winters was decided on the basis that Agents of the State of Oregon enforce Oregon laws. There was nothing in Oregon law authorizing their decision to refuse to issue gun permits based on Federal law.

    It’s really amazing how few people understand that the various States aren’t authorized to enforce Federal law. They’re not even allowed to volunteer to do so. It’s beyond mind boggling how few LEOs and State employed attorneys realize that.

    The problem with the assertions in the instant article is that the Illinois police are going to be enforcing Illinois law. The Feds did not require the Illinois Legislature to add this restriction. But it isn’t true that the Feds can’t tell the States what they’d like to see and the Legislature decides to provide it. Every State in the Union has adopted the Uniform Controlled Substance Act which is structurally identical to the Federal Controlled Substance Act. See South Dakota v Elizabeth Dole, 483 U.S. 203 (1987)

  3. Lol@ on January 24, 2014 at 1:13 pm

    All those who will complain about trading away rights in this context -as they trade enumerated rights away in order to gain carry permits…..

  4. moon on January 25, 2014 at 11:35 am

    I guess the constitution, bill of rights and second amendment and “life, liberty and pursuit of happiness” is just a thought of yesteryear and have no place in the tyranitical regime we call Illinois.