I don’t think I wrote a single story about HB 276 as it was making its way through the Delaware legislature this year. Honestly, it wasn’t even on my radar, because unlike the contentious gun control legislation signed by Gov. John Carney, HB 276 wasn’t controversial. It passed the House back in June with 41 “ayes” and not a single dissenting vote, and easily cleared the Senate a couple of weeks later on a bipartisan vote of 17-4.
The intent of the bill was clear: even though federal law still prohibits marijuana users from legally possessing or purchasing firearms, 36 states have authorized the use of marijuana for certain medical conditions. Under HB 276, medical marijuana users in Delaware wouldn’t lose access to their right to keep and bear arms, at least under state law, though they would still be subject to federal prohibitions.
This Act makes clear that an individual is not disqualified under Delaware law from possessing a firearm because the individual is a registered qualifying patient under the Delaware Medical Marijuana Act, if the registered qualifying patient is not a person prohibited under § 1448 of Title 11 of the Delaware Code. This Act makes also clear that a registered qualifying patient may engage in a firearm transaction between unlicensed persons under § 1448B of Title 11 if the transaction is exempt under § 1448B(c) of Title 11 and the registered qualifying patient is not otherwise a person prohibited under § 1448 of Title 11. A registered qualifying patient’s purchase of a firearm through a federal firearms licensee (“FFL”) is still prohibited under federal law.
Despite the overwhelming and bipartisan support for HB 276, on Thursday Gov. Carney vetoed the legislation, declaring in a statement that the legislation “does not add new meaningful protections or rights for Delawareans” and claiming that the bill is, in essence, unnecessary.
Registering as a qualifying patient under the Delaware Medical Marijuana Act does not impact the ability of a Delaware citizen to possess firearms under current Delaware law. It is already the case that such a registration does not render the qualifying patient a “person prohibited” under . Section 1448 is not ambiguous on this point. Likewise, under section 14488 of Title 11, Delawareans are not prohibited from transferring firearms to a family member simply because they are qualifying patients under the Delaware Medical Marijuana Act, and the statute does not suggest otherwise.
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. At best, HB 276 maintains the status quo. At worst, it risks misleading those who may be impacted and increasing public confusion.
So, according to the governor Delaware medical marijuana patients aren’t prohibited from either possessing a firearm or obtaining one via a private transfer. Wouldn’t it be good to make that crystal clear? After all, it seems that the vast majority of Delaware legislators are unaware of that, and if they’re oblivious then I’m sure the vast majority of the state’s medical marijuana users are as well.
It’s true that HB 276 wouldn’t “ease the existing tension” between state and federal laws on marijuana, but the same can be said of the medical marijuana laws or the decriminalization of small amounts of cannabis that Delaware has already put in place. The “complexities and risks” that Delaware medical marijuana patients who want to exercise their Second Amendment rights face are real, but that holds true for those Delawareans who want to recreationally use marijuana too, and that didn’t stop him from signing a bill to decriminalize small amounts of pot, even for those under the age of 18, who are subject to an unclassified misdemeanor charge and a $100 fine if found in possession.
As it turns out, this isn’t the first bill that Carney has vetoed dealing with marijuana. Earlier this year the governor also turned down a bill that would have legalized the possession of an ounce or less of cannabis for those over the age of 21, declaring that the legislation would promote and expand marijuana use in the state.
“I recognize the positive effect marijuana can have for people with certain health conditions, and for that reason, I continue to support the medical marijuana industry in Delaware,” said Carney in a prepared statement.
“I supported decriminalization of marijuana because I agree that individuals should not be imprisoned solely for the possession and private use of a small amount of marijuana — and today, thanks to Delaware’s decriminalization law, they are not.
“That said, 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. Questions about the long-term health and economic impacts of recreational marijuana use, as well as serious law enforcement concerns, remain unresolved.
“I respect the Legislative Branch’s role in this process, and I understand that some hold a different view on this issue. However, I have been clear about my position since before I took office, and I have articulated my concerns many times.”
I think Carney’s cannabis position is all over the map, but if he says that medical marijuana patients can possess firearms without running afoul of state statute, I suggest those Delawareans who are interested in doing so print out a copy of the governor’s veto message that they can show to any law enforcement officer who believes they’re committing a crime.