Senseless law would say medical pot users can't have gunsFriday's print column
Gun-rights organizations have been conspicuously reserved in their response to a proposed state regulation that would prohibit patients with medical marijuana permits from owning firearms.
"I don't think it's constitutional," said Richard Pearson, executive director of the Illinois State Rifle Association, when I asked him about the proposal. "It seems as though it's going to be decided in the courts."
"It presents a novel legal conundrum," state National Rifle Association lobbyist Todd Vandermyde told my Tribune colleague Robert McCoppin. "The courts are going to have to reconcile it."
The national headquarters of the NRA didn't return a request for comment.
So allow me:
This regulation, contained in a 48-page draft proposal of rules related to the upcoming implementation of medical marijuana released earlier this week by the Illinois Department of Public Health, is absurd, hysterical, illogical, intrusive and a brazen violation of the Second Amendment.
Absurd because it would require a person responsibly exercising a right newly extended to him under state law to forswear the responsible exercise of an existing right in state law and the U.S. Constitution. Not only that, even the patient's caregiver will be ineligible to own a gun if that person is handling or transporting the marijuana.
Hysterical because it implies a connection between the use of medical marijuana and violent behavior. But most researchers can't even find a link suggesting recreational use of marijuana increases aggressive behavior, much less medicinal use.
Illogical because there is a strong, well-documented connection between consumption of alcohol and violent behavior — booze was reportedly a factor in 1 in 5 violent crimes in 2008 according to a Bureau of Justice Statistics report, and about half of all domestic batteries according to an older report from the National Institute on Alcohol Abuse and Alcoholism. Yet no one would dare suggest an either/or program to license drinking.
Intrusive because it would require the Illinois State Police to inquire about irrelevant medical matters when that person applies for a firearm owner's identification card. Imagine the uproar if the questionnaire began asking about the use of prescription anti-depressants.
A brazen violation of the Second Amendment because, like it or not, the courts have been quite friendly to the idea that the threshold is high when the law wants to infringe on a person's right to bear arms. And here the threshold hasn't even been approached.
Gun-rights advocates, given their largely conservative constituency, are plainly wary of getting into the drug debate on the side of users — even ailing, sympathetic users who will be breaking no state laws by ingesting cannabis for its palliative effect.
So they'll quietly hope that common sense prevails, as it did in Oregon several years ago when the state Supreme Court overturned a county sheriff's officious denial of a concealed-gun permit to a woman who was registered to use marijuana to treat her painful muscle spasms.
Oregon made the same case that the Illinois State Police made to me when I asked them why they submitted the proposed gun/pot regulation to the Illinois Department of Public Health:
Federal law requires it. Specifically the passage in the U.S. Code that says "It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person is an unlawful user of or is addicted to a controlled substance."
And just to be clear on what that means, the federal Bureau of Alcohol, Tobacco, Firearms and Explosives posted an open letter to federal firearms licensees in 2011 affirming, "there are no exceptions in federal law for marijuana purportedly used for medicinal purposes, even if such use is sanctioned by state law."
The Oregon Supreme Court, in a decision that the U.S. Supreme Court declined to review, held that Congress had no authority to meddle in state firearms regulations, but if the feds want to come in and arrest gun-packing users of medical marijuana, well, that would be their prerogative.
And of course they haven't done that. Nor, given the current laissez-faire attitude toward marijuana users among federal authorities, are they likely to in Illinois or any of the other states where medical marijuana has been legalized.
Which leads me to this final adjective for this proposed regulation, which still has to undergo several layers of review and a public hearing process before becoming law:
Doomed.
RESOURCES:
From the open letter to all federal firearms licensees from the Bureau of Alcohol Tobacco Firearms and Explosives (Sept. 2011)
A number of states have passed legislation allowing under state law the use or possession of marijuana for medicinal purposes, and some of these states issue a card authorizing the holder to use or possess marijuana under state law.
During a firearms transaction, a potential transferee may advise you that he or she is a user of medical marijuana or present a medical marijuana card as identification or proof of residency.…
Marijuana is listed in the controlled substances act as a schedule I controlled substance, and there are no exceptions in federal law for marijuana purportedly used for medicinal purposes, even if such use is sanctioned by state law.…
Therefore any person who uses or is addicted to marijuana, regardless of whether his or her state has passed legislation authorizing marijuana use for medicinal purposes, is an unlawful user of or addicted to a controlled substance, and is prohibited by federal law from possessing firearms or ammunition.
From the draft regulations from the Illinois Department of Public Health
A qualifying patient or designated caregiver with a current Firearm Owners Identification Card or a Concealed Carry Weapons Permit who is approved for a registry identification card shall be in violation of and may not possess firearms under relevant state and federal law. As such, registered qualifying patients and designated caregivers are not eligible for a Firearm Owners Identification Card or a Firearm Concealed Carry License and may be subject to administrative proceedings by the Illinois State Police if they do not voluntarily surrender such card or license.
I pressed the Illinois State Police about enforcement and the possibility that the proposed regulation would run afoul of federal medical privacy laws --HIPPA. Here is the response from spokeswoman Monique Bond:
Anyone applying for their FOID (Firearm Owners' Identification) card or CCL (concealed carry permit) will be asked as part of the application process. Section 145(a) of the Medical Cannabis Act allows for information sharing between IDPH (Illinois Dept. of Public Health), IDOA (Illinois Dept. on Aging), IDFPR (Illinois Department of Financial & Professional Regulation) , and ISP (Illinois State Police).
Pursuant to Section 60(d) of the Medical Cannabis Act - "For purposes of law enforcement, the Secretary of State shall make a notation on the person's driving record stating that the person is a registered qualifying patient who is entitled to the lawful medical use of cannabis."
When the ISP Firearms Services Bureau conducts the background check for the FOID card or the CCL, the Driver's License will be checked for this designator. If the person misrepresents or falsifies information on their FOID application, they can be charged with perjury and the FOID app would be denied.
Because there will be a designator on the Driver's License (specifically for law enforcement purposes) and a person's FOID and CCL status is available to law enforcement through LEADS, any law enforcement officer with jurisdiction encountering a subject with a (medical marijuana) registration card who is in possession of a weapon at the time can take enforcement action. Enforcement will not solely lie with the ISP, and ISP will not control how other law enforcement agencies choose to enforce or whether prosecutors will file charges. Additionally, law enforcement will not have access to a registrants medical records, so HIPPA will not be violated.
Alcohol and Crime: Data from 2002 to 2008 (Bureau of Justice Statistics)
The Marijuana Policy Project page on Illinois. Chris Lindsey, an attorney and a legislative policy analyst for the Marijuana Policy Project who track Illinois law, had this to say in an email:
We do not believe the (Illinois) Department of Public Health's initial interpretation as it relates to patients is warranted, simply based on the clear language of the Compassionate Use of Medical Cannabis Pilot Program Act. The recently enacted law states that "[a] registered qualifying patient is not subject to arrest, prosecution, or denial of any right or privilege," at 410 ILCS 130/25(a). In addition, we also do not believe the drafters of the state medical marijuana law ever contemplated any such restriction.
A couple of good news reports from 2011 on this issue: ATF says medical-marijuana patients are prohibited from owning guns (Denver Post) and Do medical marijuana users have the right to bear arms? (Associated Press)
Some background on the issue in Oregon in the Los Angeles Times and the State Supreme Court ruling.
Alcohol Fuels Domestic Violence, While Marijuana Doesn't—Guess Which One the Feds Are Demonizing (Alternet)
Victim and Offender Self-Reports of Alcohol Involvement in Crime (National Institute on Alcohol Abuse and Alcoholism)