Newly filed bipartisan legislation in Kentucky urges the state’s congressional representatives to amend federal law to clarify that users of medical marijuana may legally possess firearms.
Senate Concurring Resolution 23, introduced Tuesday by Senate Minority Whip David Yates (D) and Sen. Stephen West (R), says it “respectfully urges Kentucky’s congressional delegation to support amending the Gun Control Act of 1968 to allow users of medical cannabis to purchase and possess firearms.”
The new measure comes as Kentucky prepares to launch a medical marijuana program, with Gov. Andy Beshear (D) saying in his State of the Commonwealth address last week that patients will have access to cannabis sometime “this year.”
Amid the preparation, however, the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) warned Kentucky residents late last year that, if they choose to participate in the state’s medical marijuana program, they will be prohibited from buying or possessing firearms under federal law.
The measure establishing Kentucky’s medical cannabis program, SB 47, was signed into law in March 2023 and took effect at the beginning of this month.
The text of the new resolution notes that most U.S. states have now legalized medical marijuana but that the ongoing “conflict between federal firearms restrictions and medical cannabis laws has created confusion, inconsistency, and unnecessary legal risk for individuals who seek to exercise their constitutional right to bear arms.”
“Citizens of the Commonwealth should not be forced to choose between accessing essential medical care and exercising their rights under the Second Amendment,” it says.
If passed by state lawmakers, the message would be sent to the clerks of the U.S. House and Senate as well as each member of the state’s congressional delegation.
So far 760 Kentuckians have so far applied for a medical card through an online portal that launched this month, the governor said in recent comments. He also shared tips for patients to find a doctor and get registered to participate in the cannabis program.
Health practitioners have been able to start assessing patients for recommendations since the beginning of December, and over 3,300 Kentuckians have sought out such consultations in the weeks since.
While there currently aren’t any up-and-running dispensaries available to patients, Beshear further affirmed that an executive order he signed in 2023 will stay in effect in the interim, protecting patients who possess medical cannabis purchased at out-of-state licensed retailers.
Meanwhile, during the November election, Kentucky saw more than 100 cities and counties approve local ordinances to allow medical cannabis businesses in their jurisdictions. The governor said the election results demonstrate that “the jury is no longer out” on the issue that is clearly supported by voters across partisan and geographical lines.
Kentucky isn’t the first jurisdiction in which ATF has warned medical marijuana users about possible violations of federal firearms law.
In 2023, for example, after the governor of Minnesota signed a marijuana legalization bill into law, ATF issued a reminder that people who use cannabis remain federally banned from purchasing and possessing guns.
In 2020, ATF issued an advisory specifically targeting Michigan that requires gun sellers to conduct federal background checks on all unlicensed gun buyers because it said the state’s cannabis laws had enabled “habitual marijuana users” and other disqualified individuals to obtain firearms illegally.
The federal statute banning people who use cannabis from buying or possessing firearms has been challenged in multiple federal courts over recent years, with one making it all the way to the U.S. Supreme Court. However, justices ultimately sent that case back down to a lower court after issuing a relevant ruling in a separate Second Amendment case.
Last week, meanwhile, a federal appeals court reaffirmed that the blanket federal ban on gun ownership by people who use marijuana is unconstitutional. While there are circumstances under which the federal statute related to guns and drug use could stand, the court wrote, the defendant’s conviction should be overturned because there was no evidence he was actively impaired at the time of the incident.
While the cannabis and gun rights issue has played out in numerous courts over recent years—with several similarly finding the existing ban unconstitutional—the Fifth Circuit made a point to note that its ruling “is not a windfall for defendants charged under § 922(g)(3), present company included.”
The court said the government is free to prosecute the defendant again “under a theory consistent with a proper understanding of the Second Amendment,” adding that “We hold only that the first prosecution failed to meet that bar.”
As the state legalization movement has continued to expand, the gun issue has become a major policy consideration within judicial and legislative circles.
Recently, for example, a federal judge in El Paso separately ruled that the government’s ongoing ban on gun ownership by habitual marijuana users is unconstitutional in the case of a defendant who earlier pleaded guilty to the criminal charge. The court allowed the man to withdraw the plea and ordered that the indictment against him be dismissed.
Separately, a panel of judges on the U.S. Court of Appeals for the Tenth Circuit heard oral arguments in November in the government’s appeal of a district court ruling that deemed the gun ban unconstitutional.
Much of the panel’s discussion at oral argument in that case surrounded whether the underlying dispute was a facial challenge to the gun ban or an as-applied challenge. Judges also zeroed in on whether or not that defendant was actually under the influence of marijuana while in possession of a firearm.
Judges did not indicate during oral argument how they plan to rule on that dispute, instead taking the matter under submission.
In a separate federal court case, DOJ lawyers recently made arguments that the ongoing firearm restriction for cannabis users is “analogous to laws disarming the intoxicated” and other historical laws “disarming many disparate groups that the government believed presented a danger with firearms.”
That brief was the latest response to a case filed by a Pennsylvania prosecutor suing the federal government over its ban on gun ownership by cannabis users. It came two weeks after lawyers for the official, Warren County District Attorney Robert Greene, asked the U.S. District Court for the Western District of Pennsylvania to allow the matter to proceed to trial.
In a number of the ongoing cases, DOJ has argued that the prohibition on gun ownership by marijuana users is also supported by a recent U.S. Supreme Court decision, U.S. v. Rahimi, that upheld the government’s ability to limit the Second Amendment rights of people with domestic violence restraining orders.
DOJ has made such arguments, for example, in favor of the firearms ban in a case in a case in the U.S. Court of Appeals for the Eleventh Circuit. In that matter, a group of Florida medical cannabis patients contends that their Second Amendment rights are being violated because they cannot lawfully buy firearms so long as they are using cannabis as medicine, despite acting in compliance with state law.
The Biden administration, meanwhile, argues that medical marijuana patients who possess firearms “endanger public safety,” “pose a greater risk of suicide” and are more likely to commit crimes “to fund their drug habit.”
The Justice Department has claimed in multiple federal cases over the past several years that the statute banning cannabis consumers from owning or possessing guns is constitutional because it’s consistent with the nation’s history of disarming “dangerous” individuals.
In 2023, for example, the Justice Department told the U.S. Court of Appeals for the Third Circuit that historical precedent “comfortably” supports the restriction. Cannabis consumers with guns pose a unique danger to society, the Biden administration claimed, in part because they’re “unlikely” to store their weapon properly.
Last year, President Joe Biden’s son Hunter was convicted by a federal jury of violating statute by buying and possessing a gun while an active user of crack cocaine. Two Republican congressmen challenged the basis of that conviction, with one pointing out that there are “millions of marijuana users” who own guns but should not be prosecuted.
Meanwhile, some states have passed their own laws either further restricting or attempting to preserve gun rights as they relate to marijuana. Recently, for example, a Pennsylvania lawmaker introduced a bill meant to remove state barriers to medical marijuana patients carrying firearms.
Colorado activists also attempted to qualify an initiative for November’s ballot that would have protected the Second Amendment rights of marijuana consumers in that state, but the campaign’s signature-gathering drive ultimately fell short.
Newly filed bipartisan legislation in Kentucky urges the state’s congressional representatives to amend federal law to clarify that users of medical marijuana may legally possess firearms. Senate Concurring Resolution 23, introduced Tuesday by Senate Minority Whip David Yates (D) and Sen. Stephen West (R), says it “respectfully urges Kentucky’s congressional delegation to support amending the Read More
