Politics
South Dakota Lawmakers Vote To Fine Medical Marijuana Dispensaries That Don’t Warn Patients About Federal Gun Ban
A South Dakota legislative panel advanced two bills on Friday aiming to better inform patients about federal restrictions on firearm ownership for people who use marijuana. One would require that medical cannabis patient applications include a written warning about the gun ban, while the other would mandate that informational signs be posted on-site at dispensaries while instituting daily fines for businesses that don’t comply.
Lawmakers in the state’s House Judiciary Committee approved both proposals, unanimously passing the measure to include a written warning on patient applications and voting 8–4 on requiring dispensary signs.
Both bills were introduced earlier this month, led by Rep. Kevin Jensen (R) in the House and Sen. Jim Stalzer (R) in the Senate, with multiple additional co-sponsors.
Jensen began his comments to colleagues at Friday’s hearing by saying he wanted to make it “perfectly clear that nothing in this bill precludes anyone from getting a medical marijuana card or using the card for whatever purposes.” But he pointed to federal rules prohibiting unlawful users of marijuana from obtaining guns, which he noted stretch back to 1968.
Pointing to a release from a Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) official in St. Paul regarding Minnesota’s legalization of adult-use cannabis, Jensen said federal law “does not provide any exception” for state-legal medical or recreational use.
“People are just totally unaware, and they could get caught,” Jensen admonished. “I almost hate to say this, but right now, if under Biden’s administration they wanted to enforce this law universally across the country, they would probably have 40 million people that they could arrest and confiscate all their firearms and ammunition.”
“That law already exists. If they enforced it right now, that could happen,” he added. “But that’s kind of a side note. The main issue with this bill is just a notification.”
A lobbyist for the Cannabis Industry Association of South Dakota, Jeremiah Murphy, said he “gently but certainly” opposed the bill requiring that written notices be included on medical marijuana patient applications, HB 1024. The federal firearm purchase form already includes such a warning, he said, while a congressional budget rider also forbids the federal government from interfering with state medical marijuana programs.
“There’s a federal law that creates some real confusion here as to whether or not this gun act can even be enforced against a medical marijuana user,” he said.
Murphy also noted that the issue has also recently become a matter for the courts, with different districts having handed down conflicting rulings on the constitutionality of the federal restrictions.
Murphy spoke against both bills, but he more strongly opposed the dispensary legislation, HB 1036, which would fine operators $250 per day if they failed to post signage in stores warning about the federal rule.
“Our resistance rises at this level because now you’re putting an administrative burden on dispensaries to post these signs,” he said. “That’s not a big deal in and of itself,” he added, but “the regulations around this business are extensive, they’re changing, they’re evolving. And so now here, we’re going to make licensees liable for a $250-a-day fine if they don’t post a notice about gun laws that arguably doesn’t apply today and arguably won’t apply at all in a couple of years.”
Under the bill, South Dakota medical cannabis dispensaries would need to post at each entrance to their business and at each register or point of sale a sign that reads:
“WARNING: Federal law prohibits the possession of a firearm by certain individuals who are users of or addicted to marijuana. See 18 U.S.C. § 922(g).”
Jenson, for his part, pointed out that he wrote a 2021 article on the issue in Outdoorsman Magazine, shortly after voters legalized medical marijuana in South Dakota, that he said received national attention.
If enacted into state law, his legislation would be suspended if the attorney general certifies that “federal law no longer prohibits the possession of a firearm by certain individuals who are users of or addicted to marijuana.”
The Justice Department has insisted on the necessity of the ban in numerous federal courts, arguing at points that people who use marijuana and possess guns pose a unique danger, akin to permitting people with serious mental illness to own firearms.
In November, for example, DOJ told the U.S. Court of Appeals for the Third Circuit that historical precedent “comfortably” supports the restriction. Cannabis consumers with guns pose a threat to society, the Biden administration claimed, in part because they’re “unlikely” to store their weapon properly.
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In a brief submitted in that case, attorneys for the Justice Department argued the firearm ban for marijuana consumers is further justified based on historical analogues to restrictions on the mentally ill and habitually drunk that were imposed during the time of the Second Amendment’s ratification in 1791.
The federal government has repeatedly claimed that those analogues provide clear support for limiting gun rights for cannabis users. But several federal courts have separately deemed the marijuana-related ban unconstitutional, leading DOJ to appeal in several ongoing cases.
The Justice Department asserted similar points during oral arguments in a separate but related case before the U.S. Court of Appeals for the Eleventh Circuit in October. That case focuses on the Second Amendment rights of medical cannabis patients in Florida.
Attorneys in both cases have also touched on a U.S. Court of Appeals for the Fifth Circuit ruling from August, Daniels v. United States, that found the ban preventing people who use marijuana from possessing firearms is unconstitutional, even if they consume cannabis for non-medical reasons.
DOJ had already advised the Eleventh Circuit court that it felt the ruling was “incorrectly decided,” and the department’s attorney reiterated that it’s the government’s belief that “there are some reasons to be uncertain about the foundations” of the appeals court decision.
The U.S. District Court for the Western District of Oklahoma also ruled last year that the ban prohibiting people who use marijuana from possessing firearms is unconstitutional, with the judge stating that the federal government’s justification for upholding the law is “concerning.”
In U.S. District Court for the Western District of Texas, a judge ruled in April that banning people who use marijuana from possessing firearms is unconstitutional—and it said the same legal principle also applies to the sale and transfer of guns.
In August, meanwhile, ATF sent a letter to Arkansas officials saying that the state’s recently enacted law permitting medical cannabis patients to obtain concealed carry gun licenses “creates an unacceptable risk,” and could jeopardize the state’s federally approved alternative firearm licensing policy.
Shortly after Minnesota’s governor signed a legalization bill into law last year, the agency issued a reminder emphasizing that people who use cannabis are barred from possessing and purchases guns and ammunition “until” federal prohibition ends.
In 2020, ATF issued an advisory specifically targeting Michigan to require 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.
In Jersey City, New Jersey, meanwhile, the mayor is suing over a state policy that allows police to use cannabis while off duty and away from work, arguing that the federal firearm rule means state officials to break the law to have officers who might use marijuana also carry firearms and ammunition. Opponents say the suit is politically motivated.
While people who use cannabis are barred from owning firearms under the statute, a little-notice FBI memo from 2019 that recently surfaced shows that the federal government generally does not consider it a violation of the law for medical cannabis caregivers and growers to have guns.
Republican congressional lawmakers have filed two bills in the first half of this current two-year session that focus on gun and marijuana policy.
Rep. Brian Mast (R-FL), co-chair of the Congressional Cannabis Caucus, filed legislation in May to protect the Second Amendment rights of people who use marijuana in legal states, allowing them to purchase and possess firearms that they’re currently prohibited from having under federal law.
Senate Majority Leader Chuck Schumer (D-NY) has committed to attaching that legislation to a bipartisan marijuana banking bill that advanced out of committee in September.
Mast is also cosponsoring a separate bill from Rep. Alex Mooney (R-WV) this session that would more narrowly allow medical cannabis patients to purchase and possess firearms.
Meanwhile, Sen. Cory Booker (D-NJ) said in July that while he believes the justice system has effectively handled the prosecution against the president’s son, there’s still a double-standard in the country that has allowed presidents and members of Congress to admit to past marijuana use with impunity while subjecting thousands of less privileged people to punitive cannabis laws.
Separately, a proposed ballot measure in Colorado would remove marijuana use as a disqualification for concealed carry permits in the state, potentially allowing people who use the drug to carry concealed firearms in public.
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