Proposed legislation defies federal ban on combining pot, guns

DOVER — Do you own a gun? If so, do you use marijuana?

If you answered yes to both, then congratulations — you’re breaking federal law.

Even though 10 states allow recreational cannabis use and 23 have medical marijuana laws, Washington D.C. still considers pot a controlled substance
— and it prohibits anyone who uses a controlled substance from possessing firearms or ammunition.

Legislation introduced last week seeks to allow Delaware users of medical marijuana to buy and keep guns despite the federal restriction.

The measure, Senate Bill 79, states registered medical marijuana patients are not prohibited by state law from having or obtaining guns. Perhaps more importantly, it instructs Delaware law enforcement not to “provide any information from any marijuana-related investigation of the person to any law-enforcement authority that does not recognize the protection of this chapter, including the National Instant Criminal Background Check System.”

The main sponsor, Sen. Anthony Delcollo, R-Elsmere, said he wanted to prevent the government from taking a constitutional right away from Delawareans who legally use pot.

“Really what it boils down to is the right to self-defense is a fundamental civil right,” he said. “If you are a person with a marijuana card you have some sort of likely long-term, chronic, debilitating medical condition. That means you’re a disabled person, likely under the federal (Americans with Disabilities Act).

Sen. Anthony Delcollo

“That means you have a characteristic that has nothing to do with your wherewithal, very likely, to safely use a firearm. So, if that’s the case and you’re merely using medicine to have your quality of life be all right, then why should you be treated as a second-class citizen who has no right to keep and bear arms, who has no right to self-defense?”

Passage appears likely for the measure, which boasts strong bipartisan support.

The issue received attention in 2017 when a Superior Court judge ruled in the case of a man who was arrested and charged with a felony for possession of both a firearm and less than 1 ounce of pot.

Although the General Assembly decriminalized possession of small amounts of cannabis in 2015, lawmakers did not address the felony offense of having both a controlled substance and a gun.

“Still, it may well be that during the many writes and re-writes of our drug laws the General Assembly never considered the use of non-criminal marijuana possession as a potential element of the newest (possession of a firearm by a person prohibited) crime,” Judge Paul Wallace wrote.

“Sure, it’s conceivable that if it ever did, the legislature might choose to eliminate non-criminal marijuana possession as an element of that compound weapons crime. But, the legislature has not done so. And, this Court cannot do so in its stead.”

After the subject was mentioned last year during a meeting of a task force looking at the issues around marijuana legalization, Rep. Steve Smyk, a Milton Republican, introduced legislation that would have exempted someone caught with no more than an ounce of marijuana and a gun from possession of a deadly weapon by a person prohibited, but he ended up pulling the bill.

More guns and weed
Lawmakers are likely to introduce this week a bill that would ban the possession of undetectable and untraceable guns and gun parts, including, as Gov. John Carney said in his January State of the State, “guns made by 3D printers, and so-called ghost guns, where you can get a gun with no serial number and no background check.”

And if you’ve been wondering where the marijuana legalization bill is, don’t worry: Those in the know say it’s coming. Whether that’s this week or a bit later will have to be seen, however.

Also coming down the pipeline at some point is legislation that would reinstate the death penalty, which the Delaware Supreme Court in 2016 ruled was unconstitutional as written.

A bill putting capital punishment back into place for convicted murderers passed the House in 2017 but never got a vote in the Senate.

Rep. Smyk is expected to be the main sponsor of the newest measure. While the specifics are unknown, the bill is likely to be supported by nearly every Republican and some Democrats.

Rep. Smyk said last week he hopes to file the proposal this month.

“We’re actually getting lighter on crime,” he said. “We have to have something that if we’re going to give you leniency, you’ve got to know that there’s an endgame. So, I think there’s a lot of pressure to get it out, but I don’t want … it to be half-witted. I actually want it to be a well-thought-out, applicable option.”

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