A resolution introduced this week by state Sen. Mike Folmer (R-Lebanon) urges the U.S. Congress to take action to protect medical marijuana patients who are gun owners or who would like to be gun owners.
Recent guidance from the federal Bureau of Alcohol, Tobacco and Firearms states that since marijuana is still classified as an illegal Schedule I narcotic under federal law, those owning or possessing marijuana may not purchase firearms.
Also, a recent U.S. Court of Appeals ruling in the 9th Circuit found that Second Amendment gun rights do not apply to those holding a valid medical marijuana card.
Folmer – one of the prime sponsors of the legislation that legalized medical marijuana in Pennsylvania – recently told members that due to the executive and judicial branches’ stance on the issue, Congress should intervene to amend the Gun Control Act of 1978 to protect the Second Amendment rights of medical marijuana users.
“Twenty-nine states, including Pennsylvania, have legalized cannabis in some form and I believe the guarantees of the 10th Amendment must prevail: ‘The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people,’” he wrote in a co-sponsorship memorandum regarding the resolution.
“I also believe failure to do so threatens Second Amendment rights, which guarantee: ‘The right of the people to keep and bear Arms, shall not be infringed.’ Fifth Amendment rights are also threatened, which guarantee that no person shall ‘be deprived of life, liberty, or property, without due process of law.’”
Folmer’s chief of staff, Fred Sembach, added in a phone interview Thursday that Folmer never intended the restriction of Second Amendment rights when he introduced the medical marijuana legalization legislation. He added that for the senator, the issue boils down to the fundamental question of what medical marijuana is.
“Is marijuana a gateway drug or is it medicine? His position has been and will continue to be: it's medicine,” he said. “There is no similar restriction on any other medication, including opioids.”
Rep. Cris Dush (R-Jefferson) warned medical marijuana patients prior to the Christmas holiday that their right to own guns would be in jeopardy.
“As a non-attorney, the only recommendation that I can give to the more than 6,000 patients registered to receive medical cannabis is to make informed decisions,” he said. “Federal law – and, in most cases, state laws – are clear that mixing possession of medical marijuana and firearms comes with heavy penalties, including hefty fines and jail time. It’s really that simple. I don’t know of anyone who wants to become a judicial test case and spend thousands of dollars appealing rulings, or rely on the prosecutorial discretion of their local district attorney or law enforcement to determine the correct legal application.”
Folmer’s resolution has yet to be formally introduced, but his office confirmed it has already attracted Senate President Pro Tempore Joe Scarnati’s (R-Jefferson) co-sponsorship. The senator hopes the resolution will be taken up swiftly when the Senate returns to session at the end of the month.
Meanwhile, legally possessing medical marijuana is restricted to patients with valid safe harbor permission from the Department of Health.
As of Thursday, information provided by the Wolf administration shows that 340 safe harbor applications have been approved by the department.
Also on Thursday, Gov. Tom Wolf announced the Department of Health has confirmed the first medical marijuana dispensary that will serve as an outlet for patients to receive the drug.
The dispensary, Keystone Canna Remedies, will be located in Bethlehem, Northampton County, and can start dispensing marijuana to those with medical marijuana identification cards once approved medical marijuana growers and processors begin distribution, expected sometime in the next four months.
“This is tremendous news for patients and the people who care for them,” Wolf said. “We are one step closer to providing medical marijuana to patients with serious medical conditions who desperately need this medication."
As Pennsylvania’s plans advance, the federal stance toward states that have legalized marijuana was made even murkier Thursday when U.S. Attorney General Jeff Sessions announced the Department of Justice has rescinded prior guidance to U.S. Attorneys on how to handle marijuana cases in states where the drug has been legalized.
While the prior guidance essentially took a hands-off approach to prosecuting individuals who legally deal with marijuana in states where the drug has been legalized, the rescission leaves the discretion up to the individual U.S. Attorney as to how those cases will be handled.
“It is the mission of the Department of Justice to enforce the laws of the United States, and the previous issuance of guidance undermines the rule of law and the ability of our local, state, tribal, and federal law enforcement partners to carry out this mission,” Sessions said Thursday. “Therefore, today’s memo on federal marijuana enforcement simply directs all U.S. Attorneys to use previously established prosecutorial principles that provide them all the necessary tools to disrupt criminal organizations, tackle the growing drug crisis, and thwart violent crime across our country.”
Pennsylvania is split into three different federal judicial districts, potentially opening the door to three different policies toward federal enforcement of state-legalized possession, growth and sale of marijuana.
Auditor General Eugene DePasquale, who has repeatedly called for the legalization of the recreational use of marijuana in Pennsylvania, lambasted Sessions’ announcement.
“We are all entitled to our own opinion, but not to our own facts. Not only has the medical community concluded marijuana is not a ‘gateway drug,’ but it has also been shown to help reduce opioid addiction,” he said. “This decision is outdated. It’s fueled by regressive political ideology. It’s against the will of the American people. And we must not stand for it.”
In addition, Gov. Wolf announced that, in response to Sessions’ announcement, he has sent letters to the US Attorney General, Pennsylvania’s congressional delegation, and congressional leaders vowing to pursue legal action should Pennsylvania’s medical marijuana program come under threat by federal enforcement and urging Congress to take action to protect Pennsylvania’s and similar programs.
“The Trump Administration must put patients' rights first, and I will not stand for backward attacks on the progress made in Pennsylvania to provide medicine to those in need," the governor stated. “We are evaluating the exact impact rescinding the directive could have on Pennsylvania’s medical marijuana program but I will continue to do everything in my power to protect Pennsylvania patients.”
Jason Gottesman is the Harrisburg Bureau Chief of The PLS Reporter, a news website dedicated to covering Pennsylvania’s government.