Back in January, this blog mentioned a case in which an anti-marijuana sheriff in Jackson County, Oregon, was trying to deny the renewal of a concealed handgun permit for Cynthia Willis, a licensed medical marijuana patient. The sheriff was so adamant about the case that he took it all the way to the Oregon Supreme Court. His primary argument was that granting a concealed handgun license to a patient (or in his terms, drug user) would be a violation of the Federal Gun Control Act. This law makes it illegal for anyone using or possessing an illegal drug to own or use a firearm. And of course, the federal government still considers marijuana in any form to be illegal.

Today, the court ruled unanimously that being a medical marijuana patient does not strip a person of his or her constitutional rights, at least as far as state law is concerned. From the court’s opinion:

Congress did not directly require the states to use their gun licensing mechanisms for the purpose of keeping guns out of the hands of marijuana users, and we conclude that Congress did not intend to achieve that same result by making it illegal for medical marijuana users to possess guns. The state's decision not to use its gun licensing mechanism as a means of enforcing federal law does not pose an obstacle to the enforcement of that law. Federal officials can effectively enforce the federal prohibition on gun possession by marijuana users by arresting and turning over for prosecution those who violate it.

Ultimately, then, we reject the sheriffs' contention that, to the extent that ORS 166.291 requires county sheriffs to issue CHLs to qualified applicants without regard to their use of medical marijuana, the statute is preempted by the federal prohibition on gun possession by marijuana users at 18 USC section 922(g)(3). The sheriffs cannot justify their denial of the applications at issue on that ground.

Basically, this means that because the Oregon gun licensing law does not substantially interfere with the ability of federal officials to enforce their gun control law, Oregon’s law is not pre-empted and is valid. The sheriff, being a state law enforcement official, must abide by state law and issue canceled handgun licenses to anyone who qualifies under Oregon law, even if that individual wouldn’t qualify under the federal scheme. Because being a medical marijuana patient is not grounds for refusal of a permit in Oregon, the sheriff must grant Ms. Willis’s concealed handgun permit even though she would still be liable under federal law for having a gun while using “illicit narcotics.”

Sound familiar?

It should. Check out the case of Gonzalez v. Raich (2005), which established that the federal government is free to enforce their marijuana laws despite California’s right to exempt medical marijuana users and caregivers from state criminal liability.

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Today, Gov. Jack Markell signed SB 17 into law, making it legal for Delaware residents with certain serious medical conditions to use medical marijuana with a doctor’s recommendation. The bill had bipartisan sponsors and support in the legislature. This makes Delaware the 16^th state, along with the District of Columbia, to pass an effective medical marijuana law.

The law goes into effect on July 1 and will permit people diagnosed with cancer, HIV/AIDS, multiple sclerosis, decompensated cirrhosis, amyotrophic lateral sclerosis (ALS), agitation of Alzheimer's disease, PTSD, intractable nausea, severe seizures, severe and persistent muscle spasms, wasting syndrome, and severe debilitating pain that has not responded to other treatments or for which other treatments produced serious side effects to possess up to six ounces of marijuana without fear of arrest. Qualified patients will not be able to cultivate their own medicine, but they will be able to obtain medical marijuana from state-licensed compassion centers regulated by the Delaware Department of Health and Social Services, which will also issue medical marijuana ID cards to patients who receive a recommendation from their doctor. Public use of marijuana and driving under the influence are prohibited.

“There are so many people in Delaware who are suffering unimaginable pain that this will help, and we want to be able to do what we can to provide much-needed relief for those citizens,” said Senate Majority Whip Margaret Rose Henry, D-Wilmington East, who sponsored the legislation. “I am very grateful that so many of my colleagues were able to look past the myths surrounding marijuana and into the eyes and hearts of those who were crying out for our help. Needless to say, I am profoundly grateful to Gov. Markell for his support of this important legislation.”

“Today is an amazing victory for seriously ill Delaware patients, who have been waiting a very long time for the chance to use the medicine they need without fear,” said Noah Mamber, legislative analyst for the Marijuana Policy Project, who lobbied and mobilized patients, professionals, and grassroots activists in support of the bill. “SB17 is the most comprehensive, tightly-written medical marijuana bill in the country, and with this vote, the Delaware Legislature proved that compassion is not a red or a blue issue. It’s a human issue.”

Chris McNeely, a Dagsboro National Guard veteran and chronic pain patient with severe wasting syndrome, said, “Until this law was passed, I was afraid to use medical marijuana, even though it helped me in the past, because if I was arrested and put in jail, they could not properly care for me, and I could actually die. I am so happy I will be able to get legal relief soon.”

With this victory, we are well on our way to accomplishing MPP's goal of 27 medical marijuana states by 2014. Keep up the good work, everybody!

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UPDATE: Gov. Markell signed the bill into law!

On Wednesday, the Delaware Senate passed the final version of SB 17, which would allow people with certain medical conditions to use marijuana without fear of arrest. Medical marijuana patients are now waiting for Gov. Markell to sign the bill into law. The governor has stated that he supports the bill and is expected to approve it very soon.

Under the new law, patients 18 and over with cancer, HIV/AIDS, Alzheimer’s, PTSD, multiple sclerosis, or ALS would be permitted to use marijuana to treat their conditions with a recommendation from their doctor. While the law would not allow home cultivation, it does establish a regulated non-profit dispensary system to provide safe access for patients. There would initially be one dispensary in each of Delaware’s three counties.

If the bill becomes law, Delaware will become the 16^th state, in addition to the District of Columbia, to allow seriously ill patients to use marijuana.

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Great news! Maryland Governor Martin O’Malley has signed SB 308! As of June 1, patients in Maryland charged with possession of up to one ounce of marijuana who can show they’ve been diagnosed with a debilitating condition that is resistant to other treatments will be found “not guilty” if they demonstrate they’re likely to benefit from medical marijuana.

Congratulations to everyone who helped make this day possible. Del. Dan Morhaim, Sen. Jamie Raskin, and Sen. David Brinkley worked tirelessly to secure their colleagues’ support. Allied drug policy organizations were also instrumental in helping achieve this victory. Finally, and most importantly, brave patients and their loved ones came from all over the state to courageously share their stories with legislators and members of the media. We simply would not be here without their efforts.

This is a proud day for MPP. We’ve been leading the lobbying effort in Maryland for a decade, securing passage of the original Darrell Putman Compassionate Use Act, and now today’s improvement legislation. And we’ll be back next year to help pass a comprehensive law that includes legal access for patients and protection from arrest.

Thank you for all your support!

[caption id="attachment_4048" align="aligncenter" width="400" caption="Dan Riffle, Former Del. Don Murphy, and Karen O'Keefe"][/caption]

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On Thursday, May 5, the Vermont House of Representatives voted 99-44 to approve an amended bill that would allow four well-regulated non-profit medical marijuana dispensaries throughout the state.

I am pleased to announce that the Senate has approved the amendments, and the bill is now on its way to the governor to be signed into law!

It is expected that Gov. Peter Shumlin will approve the bill. He has stated his support for marijuana reform publicly in the past and has been a consistent ally.

Hopefully, with Gov. Shumlin’s help, medical marijuana patients in Vermont will soon be able to access the highest quality medicine safely and affordably.

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Despite being disappointed with the language of the bill, it appears that Montana Governor Brian Schweitzer is not upset enough to veto the final version of S.B. 423, which would destroy the burgeoning medical marijuana industry, force patients to go to the illicit market, and make it extremely difficult for patients to qualify for the program.

On April 30, Gov. Schweitzer announced that while he was not pleased that the legislature had ignored most of the amendments he suggested when he first sent the bill back to them, he felt that it would be better to pass S.B. 423 than leave the status quo. He said he will let the bill become law without signing or vetoing it. He still has time to change his mind, however.

Under S.B. 423, larger marijuana-growing operations and all dispensaries must shut down by July 1. Patients will have to grow their own or obtain it for free from a provider who can grow for up to three people. In addition, doctors who certify 25 patients will have to pay for an investigation into their practices.

Patients and Families United plans to launch a statewide referendum campaign soon and will need help from far and wide. If enough signatures are gathered with the required geographic distribution, S.B. 423 might be prevented from taking effect prior to putting it before voters in November 2012.

Gov. Schweitzer should be commended for vetoing the bill to completely repeal the medical marijuana law and for attempting to get the legislature to amend the current bill in a reasonable fashion. He shouldn’t give up now. S.B. 423 is bad for patients, doctors, and businesses. It will put many Montanans out of work and many more sick people back in pain. And instead of creating a regulated, controlled system for distribution, it will have the opposite effect from what the legislators intended, specifically driving patients into the hands of illicit drug dealers.

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Once again, federal law enforcement is cracking down on medical marijuana businesses. On Thursday, just as Gov. Chris Gregoire was considering a veto of a bill that would establish the legality of medical marijuana dispensaries in Washington, federal agents raided several Spokane dispensaries.

Technically, these actions were in step with the Ogden memo, since Washington’s medical marijuana law does not explicitly allow and regulate dispensaries. Earlier this month, however, U.S. Attorneys warned Gov. Gregoire that they could still prosecute any medical marijuana businesses, even if they were allowed under the proposed bill. This prompted the governor to threaten a veto of the bill.

As if to illustrate their point, the DEA decided to start raids at a critical legislative juncture, which can only serve to compound the fears of nervous lawmakers and the governor.

Legislators should not allow this intimidation to affect their judgment. Several states have established licensed medical marijuana industries without seeing the type of aggression we are witnessing here. The key point to remember is that there is still no indication that the feds will go after medical marijuana businesses in states that have already established their legality. This means we need to pass laws protecting safe access as soon as possible!

Please contact Gov. Gregoire and ask her to stand up patients’ rights, and her state, by passing SB 5073.

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The Oklahoma Legislature just passed a bill that would make manufacturing hash a felony punishable by up to life in prison! You read that right – life in prison for a substance that has never caused an overdose death.

Ask Governor Fallin to veto this ridiculous bill!

This is costly – if five people are convicted under this new provision and spend just 10 years in prison, the result is a bill of over $1 million to taxpayers. It’s also just plain stupid. Here are some other crimes and their maximum punishments under Oklahoma law:

* Domestic abuse – 1 year

* Drinking and driving with a child in the car – 4 years

* Aggravated assault resulting in “great physical injury” – 5 years

* Assault with intent to kill – 5 years

* Kidnapping a child – 5 years

* Second degree rape – 15 years

* Sexual battery of a child – 20 years

Apparently, the Oklahoma Legislature thinks that making hash, a concentrated form of marijuana, is deserving of more punishment than all of these crimes that involve actual victims who have suffered actual harm.

Please talk some sense into Governor Fallin and ask her to veto HB 1798.

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Governor Brian Schweitzer stood up for the voters, medical marijuana patients, and their caregivers Wednesday when he declared his intent to issue an amendatory veto for SB 423. This bill would have drastically hindered the ability of seriously ill patients to become qualified for the program and would have eliminated the bustling legitimate medical marijuana industry, forcing patients to grow their own or resort to the illicit market. Schweitzer said he will send the bill back with amendments that allow strictly licensed commercial growing and distribution, as well as protect the privacy of patients.

The governor stated that the bill, as written and passed by the House and Senate, is unconstitutional. He also expressed disappointment in the legislature for wasting nearly the entire session trying to thwart the will of Montana voters by passing bills that are nothing but repeal in disguise.

From Missoulian:

Schweitzer said he doesn't believe the bill will survive a legal challenge.

"I'm kind of disgusted right now," he said...

… Schweitzer criticized the Legislature for managing to "squander away" most of the 90-day legislative session before sending him the bill. He said lawmakers already know it's unconstitutional, which is why they put a "severability clause" in it, saying if a court strikes down part of the bill, the rest stands. Severability clauses are common in complex bills.

"Why don't you just pass something that works, that's constitutional and that can survive the test of time?" he asked.

If the legislature does not transmit the bill in time for an amendatory veto, Gov. Schweitzer will be forced to either veto it outright or allow it to become law. From his statements, it’s not hard to guess which way he’s leaning.

In addition, it appears that the governor of Montana did not overreact to recent statements from U.S. Attorneys in Washington that the federal government could prosecute medical marijuana businesses and state employees involved in licensing them. Unlike Gov. Gregoire, he probably looked at the absence of such prosecutions in states like Rhode Island, Maine, Colorado, and New Mexico, all of which have state-licensed dispensaries. Just because the Department of Justice says they can go after marijuana businesses does not mean that they will, and the experiences of these states suggest that they are not likely to do so, particularly in states that have clear regulations allowing dispensaries.

Let’s all reach out and thank Governor Schweitzer for treating medical marijuana in a rational, principled, and compassionate manner. If he keeps standing up for the will of the people of Montana, his re-election is “guar-an-dang-teed!”

[caption id="attachment_4007" align="aligncenter" width="400" caption="Montana Gov. Brian Schweitzer breaks out the "veto brand" on bad bills. - Associated Press photo"][/caption]

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