Hemp, a variant of the cannabis plant, was legalized at the federal level in 2018. Though hemp and marijuana both come from the same plant, the critical difference is that hemp must contain less than 0.3% tetrahydrocannabinol (THC). Anything higher is classified as marijuana.

Hemp has many commercial uses, from textiles to building materials, but one of its most significant applications is the extraction of cannabinoids. Cannabidiol (CBD) is a non-intoxicating cannabinoid, and clinical trials have proven it reduces seizures in epileptic children. However, extracting cannabinoids like CBD from hemp without trace levels of THC is nearly impossible.

Gov. Newsom is targeting intoxicating hemp products, including those made by chemically converting CBD into forms of THC. However, Newsom does not distinguish between intoxicating products and those with proven therapeutic value. As a result, the standard of “any detectable quantity” would remove CBD therapies from the market even though they pose no threat of intoxication.

The proposal would harm families like Paige and Matt Figi’s, who turned to CBD to treat their daughter, Charlotte, whose severe epilepsy resisted conventional therapies. By age 5, Charlotte was suffering 300 seizures a week and lost the ability to walk, talk, and eat on her own. Hospitals told Charlotte’s parents there was nothing more they could do. The Figis tried CBD, and from that first treatment until her death at age 13 due to suspected COVID-19, the Figis say Charlotte was virtually seizure-free.

Charlotte’s story helped spur medical cannabis legalization across the country. Today, 38 states have legalized some form of medical use, and nine have specifically legalized CBD. Yet, Newsom’s plan would block families like the Figis from accessing this life-changing therapy.

States that have legalized marijuana often impose onerous and costly restrictions due to ongoing federal marijuana prohibition. With federal hemp legalization, however, hemp manufacturers can operate free of both federal rules and state marijuana regulations. Ironically, restrictions on marijuana sales allow hemp manufacturers to offer intoxicating products that compete with marijuana at more outlets and lower costs.

In 2024, over 10 states enacted legislation regulating hemp-derived cannabinoids, and many states are considering similar proposals. Most of these bills have focused on barring sales to minors, ensuring product safety, limiting THC content, and restricting sales of intoxicating hemp to licensed dispensaries. But no state has gone as far as banning hemp products with any detectable THC, as Gov. Newsom proposes.

Newsom previously backed legislation that would have regulated hemp products, imposing rules on hemp similar to those governing marijuana, including manufacturing and labeling standards, limiting sales to dispensaries, and capping THC at 0.3% total or no more than 1 milligram per container. But that measure failed, in part due to concerns raised by patients and parents like the Figis, who feared that forcing all CBD sales into the dispensary system would lead to prohibitively high prices and strip access entirely for many patients since many Californians live more than 100 from the nearest dispensary.

Newsom’s concerns about consumer safety and youth access to intoxicating hemp products are valid. But a ban goes unnecessarily far and will undermine his goals. It would strip patients of access to vital therapies and push consumers toward illicit products without oversight.

If protecting consumers is the goal, California should heed the lessons it learned from legalizing marijuana. Rather than a ban, California should require hemp producers to adhere to the same testing and labeling standards as marijuana and limit sales of intoxicating products to retailers with track records of age-gating adult products.

At the same time, the state should reduce burdensome regulations on marijuana businesses, enabling them to compete in an evolving cannabinoid landscape. By striking this balance between safety, access, and fairness, California can protect patients, consumers and marijuana businesses without restricting access to life-changing cannabis therapies.

A version of this column first appeared in the Orange County Register.

The post California’s emergency hemp rules could block access to life-saving therapies appeared first on Reason Foundation.

In many states, the possession of marijuana is now permitted, but it remains illegal under the federal Controlled Substances Act. The federal Gun Control Act of 1968 also prohibits people who have unlawfully used controlled or scheduled substances from possessing firearms. Courts have been divided over whether a marijuana user complying with state law should be considered an “unlawful” drug user for federal firearm regulation.

Even if the federal Drug Enforcement Agency (DEA) moves marijuana from Schedule I to Schedule III in the Controlled Substances Act, as it seems poised to do, any user without a valid prescription could be considered an “unlawful” user by federal standards. Even state-registered medical marijuana patients may not be clear because prescriptions are also federally regulated.

There is no clear evidence that medical marijuana patients are any more disposed to engage in violent crime than other groups. On the contrary, the available evidence indicates that medical marijuana is associated with slightly lower crime rates.

While this issue continues to be debated in federal courts, many lawmakers at the state and federal levels have proposed legislation to resolve this apparent conflict. Several states have considered legislation that would either conform state firearm regulation to federal standards or instead protect a state-legal marijuana user’s right to own a firearm under state law.

Let’s explore the evolution of federal laws involving gun ownership for individuals using marijuana legally under state laws, and discuss recent efforts by state legislators to address and reconcile discrepancies between state and federal regulations.

Who is an “unlawful” marijuana user?

Federal courts have reached inconsistent conclusions about whether a person who uses marijuana following state law should be allowed to purchase or possess a firearm.

Federal courts’ understanding of the Second Amendment needed to adapt to the U.S. Supreme Court’s 2022 decision in New York State Rifle & Pistol Association Inc.  v. Bruen. The plaintiffs in Bruen, the New York State Rifle & Pistol Association and two individuals, challenged New York’s requirement that applicants demonstrate “proper cause” to obtain a concealed carry license.

In a 6-3 opinion written by Justice Clarence Thomas, the Supreme Court ruled that this requirement was unconstitutional, concluding that the Second Amendment protects an individual’s right to carry a handgun for self-defense outside the home. The majority decided that regulations on the right to bear arms should be consistent with the nation’s historical traditions.

This Supreme Cout decision has led to new questions about whether barring marijuana users from purchasing or possessing firearms is consistent with historical American approaches to firearm regulation. In at least one case, a federal district court has ruled that this ban is inconsistent with the standard set in Bruen.

In 2022, Oklahoma resident Jared Harrison was charged with unlawful possession of a firearm after an officer of the Lawton Police Department found marijuana and a handgun in his car. Judge Patrick Wyrick of the U.S. District Court for the Western District of Oklahoma dismissed the indictment, ruling that the federal statute banning “unlawful” users of cannabis from possessing firearms violated the Second Amendment. Wyrick emphasized that marijuana use lacks the consequences (like violent behavior) historically used to justify firearms regulation, stating that “mere use of marijuana does not indicate that someone is in fact dangerous, let alone analogous to a ‘dangerous lunatic.’”

In the case of United States vs. Daniels, a Mississippi resident, Patrick Daniels, was convicted of possessing a firearm after he was deemed an “unlawful user” of marijuana in 2022. Daniels admitted to smoking marijuana multiple days per month, leading to his conviction. However, the government did not provide evidence of his intoxication at the time of arrest or specify when he last used marijuana.

The Daniels case touches both the broad question over whether his conviction aligns with the historical tradition of firearm regulation in the United States, as well as the narrower issue of whether a person must be actively impaired for the prohibition to apply.

The Fifth Circuit Court overturned Daniels’ conviction in August 2023, arguing that disarming a sober citizen solely based on past drug use lacks historical precedent in American jurisprudence. More broadly, the court concluded, “… [M]ore generalized traditions of disarming dangerous persons [do not] support this restriction on nonviolent drug users.”

In other words, the Fifth Circuit concluded both that the government could not restrict gun ownership for marijuana users during periods of sobriety and that the government could not restrict gun ownership for marijuana users at all.

A fourth case decided before the Supreme Court’s decision in Bruen adds to the legal complexity: While individuals with medical marijuana cards are prohibited from purchasing firearms under federal regulations, those who already possess firearms are still able to obtain a state medical marijuana card.

In Wilson v. Lynch (2016), S. Rowan Wilson was denied the purchase of a firearm by a Nevada gun dealer because she held a state-issued medical marijuana card. This rejection came after a 2011 letter from the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) directed gun dealers to consider medical marijuana cardholders as unlawful users of a controlled substance. Wilson filed a lawsuit alleging that the ATF rule violated her First, Second, and Fifth Amendment rights. The lower courts dismissed her case twice, and on her second appeal, the Ninth Circuit affirmed the lower court’s dismissal.

The court contended that under federal law, marijuana is a Schedule I controlled substance, and users are prohibited from purchasing firearms due to the increased likelihood of violence associated with drug use.

Wilson argued that she did not use marijuana but held the card to support the political cause of legalization. Wilson’s argument was rejected, as the court deemed the restriction on firearm purchases did not impede her ability to advocate for marijuana legalization through other means. Her Fifth Amendment claim also failed, as the court ruled there is no constitutional right to hold a medical marijuana card and also purchase a gun. The court concluded that Wilson could either forfeit her card to buy a firearm or keep her card and forgo new firearm purchases, prioritizing the federal government’s interest in regulating firearm sales over her individual rights in this context.

The same fight occurred in the U.S. District Court for the Northern District of Florida, where the Florida Department of Agriculture and Consumer Services commissioner and three Florida residents filed suit in April 2022. In the case Fried et al. v. Garland et al., pending in the U.S. District Court for the Northern District of Florida, plaintiffs challenged whether medical marijuana use under state law should prevent individuals from exercising their Second Amendment rights.

The U.S. Department of Justice has filed a motion to dismiss, arguing that medical marijuana patients are too dangerous to own firearms, citing concerns about public safety.

The two plaintiffs are registered medical marijuana patients and are barred from purchasing a firearm. One plaintiff owns a firearm and would like to use marijuana for medical reasons. Will Hall, an attorney with the Dean, Mead & Dunbar firm representing the plaintiffs, told The News Service of Florida that the Supreme Court ruling puts the onus on Garland’s office to justify the gun denial.

Last year, before the U.S. Court of Appeals for the Eleventh Circuit panel, Hall argued that banning people who use medical cannabis from owning guns is inconsistent with historical firearm regulations and the original context of the Second Amendment. The Department of Justice (DOJ) argued in response that early laws restricting gun rights over drunkenness and mental illness provide a historical basis for the ban.

“Our reading of the case is [that] the federal government has to show that this regulation, which is basically treating medical marijuana patients as if they are just, per se, too violent to possess guns, has some kind of historical tradition, and we just don’t see it,” Hall said.

Hall said Fried’s legal team scoured the issue to see if there was “any equivalent regulation” in the distant past, but they couldn’t find any. “There’s really no equivalent for what we have in medical marijuana now, which is that the states have made it legal and the federal government has, not just through a letter or some promise but through law, said we will protect those programs from interference.”

Although an opinion hasn’t yet been delivered, during oral arguments the judges questioned the DOJ’s classification of these state-registered medical cannabis patients as not law-abiding.

States considering legislation to allow firearm possession by marijuana users

In 2024, several states introduced bills that directly challenge the DOJ’s position, though, as with drug legalization, states cannot stop the federal government from continuing to enforce its ban.

In Minnesota, where adult-use marijuana is legal, state legislators introduced companion bills House File 657 and Senate File 89. According to the Minnesota legislation, a patient enrolled in the medical cannabis registry will not be considered an “unlawful user” of a controlled substance under state law. Participation in the medical cannabis registry does not disqualify individuals from possessing firearms and ammunition.

The bills specify that a sheriff cannot deny a permit to carry solely based on the applicant’s enrollment in the medical cannabis registry or use of medical cannabis for a qualifying condition. Further, any state paperwork used to approve or disapprove a person’s eligibility to purchase, own, possess, or carry a firearm must allow qualifying patients to refrain from reporting their use of medical cannabis.

However, the bill adds that individuals enrolled as patients in the medical cannabis registry who use medical cannabis and know or have reason to know that it can cause impairment will still be prohibited from carrying a pistol in a public place.

A Maryland House committee heard testimony on House Bill 0296, which seeks to ensure that registered medical marijuana patients in Maryland can purchase, own, and carry firearms, regardless of their cannabis use.

Testimony during the hearing on Maryland’s bill largely featured veterans and advocates, including Army veteran Randall Cody Floyd, who emphasized the disparity between firearms policies for medical cannabis users and those using prescription opioids. Floyd stated, “Basically I chose my medical cannabis card over my gun rights, and I should not have to do that. I can get my carry permit with prescription opioids or painkillers, but for something that I choose that’s a less harmful route, I can’t own a gun. Why is that?”

Mark Pennak, president of Maryland Shall Issue, a gun rights advocacy group, cautioned that even if H.B. 0296 passes, federal law still criminalizes cannabis users’ firearm ownership, exposing them to arrest and potential felony charges. Gun dealers may also refuse sales to individuals acknowledging marijuana use, regardless of state law.

The companion legislation, Senate Bill 0348, passed the Maryland Senate with strong bipartisan support. If enacted, the law would take effect on October 1.

In Kentucky, where marijuana use is permitted solely for medical purposes, lawmakers proposed Senate Concurrent Resolution 44, urging the United States Congress to “repeal federal restrictions that prohibit the possession and use of firearms by individuals who use marijuana in compliance with state or tribal laws.”

States seeking to conform to federal law

On the other hand, some lawmakers have worked to align their states with the federal ban, introducing bills that ensure medical marijuana users will not be permitted the right to bear arms unless marijuana is federally legalized.

South Dakota and West Virginia both introduced bills that, if passed, would require that each application for a medical marijuana registry identification card and renewal card include a notice that informs medical marijuana applicants that “[U]ntil marijuana is legalized under federal law, an individual who is a current user of marijuana is, under federal law, an unlawful user of a controlled substance; and, Federal law does not exempt the use of marijuana for medicinal purposes.”

South Carolina lawmakers also affirmed these federal gun restrictions in proposed legislation to authorize a medical marijuana market. That bill, H. 346, passed the state Senate this spring but stalled in the House. This legislation was carried over from prior sessions and is likely to be reintroduced again next year. If eventually passed, medical marijuana patients will receive a flier notifying them of their inability to possess a firearm. Additionally, legislators will require a statement signed by qualifying medical cannabis applicants declaring that the individual is not employed in, or contracted to perform, any job in which the person will carry a weapon, including a firearm.

Elsewhere, Idaho legislators introduced a bill that explicitly states, “a license to carry concealed weapons shall not be issued to any person who is an unlawful user of marijuana.” Idaho is one of only five states that prohibits the use of marijuana of any kind, including for medicinal purposes.

Federal bills

There have also been attempts in the U.S. Congress to alter the federal approach to firearm regulation for marijuana users, particularly for veterans.

Last year, Rep. Alex Mooney (R-W.V.) introduced House Resolution 363: The Second Amendment Protection Act, while Rep. Brian Mast (R-Fla.) introduced House Resolution 2772: The Gun Rights and Marijuana (GRAM) Act. Both seek to remove federal firearms-related restrictions for individuals who live in a state or on lands where adult marijuana use is legal under state or tribal law, given that an individual’s marijuana use does not violate state or tribal laws.

Rep. Mast stated, “Addressing this issue is of particular importance to the veteran community,” adding, “No veteran that I know wants to be forced to choose between a viable treatment option for conditions like PTSD, and the ability to protect themselves and their families. The GRAM Act is about ensuring no one has to make that choice.”

Both bills were referred to the House Committee on the Judiciary and have not seen further progress. However, it is not uncommon for legislation addressing issues like cannabis and firearms to face hurdles in the legislative process.

Conclusion

Federal case law around the Second Amendment has generally prohibited the possession of a firearm by a person who is considered a risk to themselves or others, as well as by a person convicted of committing or threatening a violent crime.

Many states are recognizing that marijuana is safe to consume with minimal abuse risk. The mere use of marijuana does not indicate that someone is dangerous or suffering a mental health condition that would inhibit them from gun ownership.

There is no clear basis for restricting an individual’s right to possess a firearm due to marijuana consumption, particularly in light of the Supreme Court’s new standard that firearm regulation remains consistent with historical precedent. Alcohol users do not confront a blanket prohibition against firearm ownership; they are barred from carrying a firearm while actively intoxicated. A similar standard should be applied to marijuana users, and this standard should be consistent at the state and federal levels.

The post Examining court rulings and state and federal laws on marijuana users’ gun rights appeared first on Reason Foundation.

Now, in 2024, several more states are considering the legalization of recreational cannabis, the medicinal use of cannabis, or the decriminalization of marijuana.  

Big action states with proposed bills to legalize recreational cannabis use 

New Hampshire: New Hampshire is the only northeastern state that has not yet legalized and regulated the adult-use marijuana market. The New Hampshire House of Representatives recently passed House Bill 1633 a bipartisan proposal that would license private entities to engage in commercial cannabis activities. That legislation is competing with a proposal backed by Gov. Chris Sununu and state Senate Republicans that would see the state’s liquor commission operate a retail monopoly over adult-use cannabis. 

North Carolina: North Carolina’s House Bill 626 would legalize the possession and sale of cannabis. Its preamble declares, “[C]annabis prohibition, like alcohol prohibition before it, has been a wasteful and destructive failure.”

The bill would authorize an unlimited number of cannabis licenses for qualifying entities and would not allow application fees to exceed $5,000. However, it would levy a relatively high retail excise tax on cannabis products of 30% and would allow local governments to ban any commercial cannabis activity. 

Hawaii: Hawaii came very close to enacting an adult-use market for marijuana earlier this year. After lawmakers debated multiple proposals for legalization the year prior, the Hawaii attorney general’s office hosted a working group with leaders from the legislature during the interim to develop language that might secure a legislative consensus. Reason Foundation consulted with key lawmakers throughout this process and made extensive recommendations on the language contained in the ultimate bill, Senate Bill 3335, and also published an analysis of the existing cannabis market in Hawaii to help inform the debate. This legislation was ultimately voted down in its final committee of jurisdiction, the House Finance Committee, although it advanced farther than any prior legalization proposal in Hawaii. 

Pennsylvania: In Pennsylvania, House Bill 1080 and House Bill 1082 are competing proposals to legalize and regulate cannabis sales for adults aged 21 and older.  Both bills were assigned to the House Health Committee in May 2023 and remain alive but have not received a committee hearing.   

House Bill 1080 would allow individuals aged 21 and above to possess, consume, cultivate, and purchase cannabis from state-operated stores under the management of the Pennsylvania Liquor Control Board. Retail cannabis sales would be subject to a 19 percent tax rate, with all generated revenue directed towards the state general fund. HB 1080 also introduces a specialized regulatory framework for industrial hemp. 

Pennsylvania HB 1082 would create a recreational cannabis market with licenses granted to farmer-growers and grower-processors. It would limit licensing fees to $2,500 and impose only a modest 1% excise tax on the gross receipts of licensees. However, the bill would empower the regulatory authority to impose minimum capitalization requirements for licensure, which can be a significant barrier to entry into the marketplace. 

West Virginia: West Virginia’s Senate Bill 386 and House Bill 4873 would legalize and regulate cannabis for adults. These measures are identical and would allow counties to create a ballot question proposing cannabis legalization within their jurisdiction. If local voters then approve the ballot question, counties could begin to license commercial cannabis entities and charge a 5% excise tax on retail sales. The state would also establish a regulatory structure and issue licenses that cost no more than $5,000 and charge an additional 15% excise tax.

Senate Joint Resolution 8 is an alternative that proposes a statewide ballot question to create a constitutional right for West Virginians to possess up to two ounces of marijuana. None of these proposals has received a committee hearing yet.  

Medium action states introducing bills to legalize medical cannabis 

The first state to effectively legalize medical cannabis was California in 1996 when voters approved Proposition 215. Shortly after, in 2000, Hawaii became the first to legalize medical cannabis through an act of the state legislature. As of today, medical cannabis legalization has spread to more than two-thirds of the states, and more could be poised to join those ranks this year. 

South Carolina: In February, the South Carolina Senate passed Senate Bill 423, which would permit medical marijuana use, mirroring a similar effort in 2022. The 2022 effort failed because that version contained a proposed tax on medical marijuana, and tax bills must originate in the House rather than the Senate. The current version of the bill does not contain a tax but is otherwise highly restrictive. It would not permit home cultivation or smokable marijuana products and would sunset after five years. 

Meanwhile, a separate South Carolina Senate proposal, which has not advanced, proposes an advisory ballot question for the Nov. 2024 general election ballot, allowing voters to weigh in on the legalization of medical marijuana. 

Wisconsin: In Wisconsin, Gov. Tom Evers pushed for full legalization of recreational cannabis going into this legislative session. However, Republican lawmakers have repeatedly rejected calls from Gov. Evers and other Democrats to legalize all uses of marijuana, including medical and recreational.

In response, Gov. Evers conveyed openness to a more limited medical marijuana proposal if it has Republican support. Evers told the Associated Press:

“I would think that getting it all done [marijuana legalization] in one fell swoop would be more thoughtful as far as meeting the needs of Wisconsinites that have asked for it. But if that’s what we can accomplish right now, I’ll be supportive of that.” 

For their part, Assembly Republicans proposed to restrict the sale of medical marijuana solely to state-owned dispensaries. Under the proposal, individuals with qualifying medical conditions could obtain a state-issued medical card to purchase non-smokable marijuana products from only five retail locations across Wisconsin. This limitation, in addition to the prohibition on home cultivation of medical marijuana, would severely restrict patient access and choice. The proposal would also extend the state’s prescription drug monitoring system to the medical marijuana market, adding another layer of regulation and monitoring. 

By contrast, 36 Senate Democrats sponsored legislation to license private entities to engage in commercial cannabis activities and automatically expunge past marijuana convictions. 

Both measures failed to advance before the legislative session concluded in March, although lawmakers have expressed a willingness to hold additional hearings on medical cannabis legalization. 

Indiana: In Indiana, lawmakers have introduced several bills that would permit the use of medical marijuana by individuals with serious medical conditions determined by their physicians. The bills would establish programs for the cultivation, processing, testing, transportation, and dispensing of medical marijuana or cannabis, with oversight from state agencies. In addition, the bills require proper labeling, child-resistant packaging, and testing of products, prohibit packaging appealing to children, and authorize research on medical marijuana or cannabis.  

Tennessee: Tennessee’s Senate Bill 1104, presented by Republican state Sen. Janice Bowling, recently failed in the Senate Judiciary Committee on an almost a party-line vote of 6-3. Both Memphis Democrats on the committee, state Sens. London Lamar and Sara Kyle, were joined by one Republican, Springfield Sen. Kerry Roberts, in support of the bill. 

Georgia: Lawmakers in Atlanta introduced Senate Bill 350, which aims to increase the minimum age for purchasing medical marijuana in Georgia from 18 to 21. 

In 2021, Georgia Gov. Brian Kemp signed legislation to create a unique low-THC medical cannabis program. Patients suffering from debilitating illnesses. such as seizures, terminal cancers, Parkinson’s disease, and post-traumatic stress disorder can apply for a low-THC oil registry card. These registered patients are only permitted to purchase cannabis oils that contain no more than 5% THC. The legislation authorized up to 30 licensed retailers of these products statewide.

Seven Georgia dispensaries are operational, with the first opening in April 2023. Last year, Gov. Kemp authorized regulations that allow traditional pharmacies to sell these products as well, although the federal Drug Enforcement Administration (DEA) warned that dispensing cannabis by pharmacies would violate federal law, potentially leading to arrests or fines. 

Kansas: Kansas Republican Sen. Robert Olson proposed Senate Bill 135, which would allow patients access to medical marijuana with the state, charging a 10% retail excise tax. However, Republican leadership has refused to advance the bill in the Senate and removed Olson from his chairmanship of the State and Federal Affairs Committee after he held hearings on the medical cannabis bill. Although Olson found an ally in Democratic Gov. Cindy Holscher, Olson believes state Senate leadership does not want a bill to pass. 

“The majority of the state [does] want medical marijuana,” Gov. Olson said, according to Marijuana Moment, “and I don’t see a reason why we don’t pass a bill.”

Smaller action states with marijuana decriminalization bills 

In addition to states considering the legalization of cannabis for recreational or medical use, a few have considered decriminalization.

Florida: In Florida, Senate Bill 94 would have reduced criminal penalties for a first, second, or third violation if the offense is the possession of 20 grams or less of cannabis. However, it died in the Senate Criminal Justice Committee on March 8.  

South Carolina: In addition to South Carolina’s medical marijuana bill mentioned above, the House is currently considering a bill to decriminalize possession of 28 grams—one ounce or less—of marijuana, or 10 grams or less of hashish, and to authorize law enforcement to issue a civil citation for possession of that same quantity of marijuana or hashish.   

Conclusion 

State legalization of marijuana continues to gain momentum. In the 26 years since California voters first approved a medical marijuana market and the 12 years since Colorado and Washington voters first approved the legal recreational use of marijuana, numerous states have iterated and developed different governing structures for these markets.

In looking at best practices, some states’ legalization efforts have proven more successful than others in displacing illicit cannabis markets and improving public safety, and it is clear the details of legalization policy matter immensely. 

While marijuana legalization itself is an important step in the right direction, policymakers should ensure marijuana markets are open and competitive and offer legitimate pathways to entrepreneurship for individuals from all walks of life. 

The post Examining the 2024 state marijuana legalization proposals appeared first on Reason Foundation.

According to the bill analysis by the Wisconsin Legislative Reference Bureau, the proposal would allow individuals who suffer from a narrow range of qualifying conditions to obtain a state-issued medical card upon the recommendation of their doctor. With the card, an individual could purchase only non-smokable products containing marijuana that would be sold exclusively through five retail locations spread across the state. A patient could purchase no more than 30 days’ worth of inventory upon their first visit and up to 90 days’ worth upon subsequent visits. 

Wisconsinites would not be able to grow their own medical marijuana at home, but a registered caregiver could purchase medical marijuana products from a state-run dispensary on behalf of a patient if their relationship is documented in advance with the state. Further, the state would extend its prescription drug monitoring system that was designed to track physicians’ patterns of prescribing opioids to the medical marijuana market.

While Republicans propose to license private companies to cultivate and process marijuana into non-smokable goods, at least 80% of these companies’ officers and directors would need to be Wisconsin residents. Moreover, no officer or director could have been convicted of “any crime” in the 10 years preceding their application, regardless of its severity.

In sum, Wisconsin Republicans appear set to propose one of the most restrictive medical marijuana programs in the nation despite sharing a border with three states—Illinois, Michigan, and Minnesota—that already have fully recreational marijuana markets.

The Wisconsin medical marijuana proposal does have a few strong points. First, medical marijuana products would be exempt from sales tax. Second, local governments would not be able to regulate licensed marijuana facilities. High taxes and local bans have helped prop up illicit markets in some states.

Third, there appears to be no limit to the number of cultivation or processor licenses available. These few strengths, however, are largely negated by the fact that the state would monopolize the retail function.

Wisconsin Republicans aren’t the first to propose a state monopoly on marijuana. Republicans in New Hampshire are considering a similar idea at Gov. Chris Sununu’s suggestion. In both cases, Republicans have taken the lead in suggesting state ownership of the means of production—literal socialism—throughout an entire tier of the marketplace.

The proposals would also introduce major legal complications. First, the manufacture and distribution of marijuana remain criminal actions under federal law, and any enterprise organized to carry out these activities is, by definition, a federal criminal enterprise. By directly trafficking marijuana, as the Wisconsin proposal suggests, the state itself would become a criminal enterprise, state assets would become subject to federal seizure, and state officers would be subject to arrest. Moreover, Wisconsin could face civil liability through the Racketeer Influenced and Corrupt Organizations (RICO) Act if a private party alleges they’ve been harmed by the state’s federal criminal activity.

This danger isn’t illusory. California examined the possibility of establishing a state bank just to facilitate transactions in the marijuana industry. But it determined that doing so would expose the state to criminal and civil RICO liability.

Second, the entire medical marijuana program could be shut down at any time by federal preemption, and any store employee would have standing to bring suit against the state for compelling them to violate federal law.

Third, a new Office of Medical Cannabis Regulation, which would run the stores, could face commercial lawsuits from suppliers depending on their purchase decisions. What criteria would regulators use to evaluate which products they will purchase or where products will be displayed on shelves? In New Hampshire, the Liquor Commission frankly acknowledges it holds no expertise over marijuana products and would hire a third-party consultant to make these decisions.

These issues are entirely avoidable. Private entrepreneurs and investors have demonstrated a robust appetite to assume the risks of operating in a federal illegal market to operate state-legal medical and recreational marijuana businesses. Wisconsin could simply follow the model pioneered by states like Michigan.

Because Wisconsin’s neighbors offer recreational marijuana markets, Wisconsinites already have access to a wide range of products at retail locations that may be closer to their homes than the proposed state stores. A legislative analysis from last spring estimates that Wisconsinites spent a total of $61.3 million at Illinois’ private marijuana dispensaries in 2022.

Wisconsin should legalize medical marijuana. However, state lawmakers should get serious and put forth a bill that recognizes a right for medical patients to procure marijuana and that individual initiative is the best way to organize economic life.

The post Wisconsin Republicans propose state marijuana monopoly appeared first on Reason Foundation.

In Nov. 2022, Kentucky Gov. Andy Beshear issued an executive order in which he highlighted the many proven ways medical marijuana is helping patients, the overwhelming public support in the state for medical marijuana, and lamented the Kentucky Senate’s failure to consider legislation to create a legal medical marijuana program after the House had approved legalization bills in 2020 and 2022. 

“In the absence of legislation legalizing medical cannabis in Kentucky,” Gov. Beshear concluded, “I have reviewed what executive action could provide relief to Kentuckians and allow those suffering from chronic pain and other medical conditions to use medical cannabis.”

Gov. Beshear issued an order relying on his pardon power as governor to grant a forward-facing pardon to all individuals subsequently convicted of possessing marijuana if they could document a medical diagnosis for one of a range of 21 specified health conditions. These included cancer, epilepsy, AIDS, sickle cell anemia, and other serious conditions. To qualify for the pardon, a person would need to produce written proof of purchase demonstrating that the marijuana in their possession was purchased legally in another state.

As Reason magazine’s Jacob Sullum reported:

Because state legislators have not delivered a reform that the vast majority of voters say they want, Gov. Andy Beshear has issued a conditional pardon aimed at protecting people who use marijuana for medical purposes from prosecution. “Kentuckians throughout the Commonwealth suffer from a multitude of medical conditions from which they deserve relief,” Beshear, a Democrat, said in his November 15 executive order.

He noted the failure of “past efforts to legalize medical cannabis” in Kentucky’s Republican-controlled legislature, including two bills that passed the House of Representatives with bipartisan support but died in the Senate.

Contrary to what some news outlets reported, Beshear’s order did not “legalize” medical marijuana. It does not even necessarily mean that patients who use cannabis for symptom relief won’t be arrested for marijuana possession, a misdemeanor punishable by up to 45 days in jail and a $250 fine. But it does mean that such individuals won’t be prosecuted for that offense, provided they meet several criteria.

To be eligible for the pardon, patients need a doctor’s “written certification” that they have been diagnosed with one of 21 listed conditions, which include cancer, epilepsy, multiple sclerosis, AIDS, glaucoma, muscular dystrophy, and “intractable pain.” They must buy no more than eight ounces of marijuana outside of Kentucky in a jurisdiction where such sales are legal, which they need to verify with receipts.

The pardon is not a license to grow medical marijuana or to obtain it in Kentucky or any other state where it remains illegal. Cannabis is legally available in several neighboring or nearby states, although some of them do not allow purchases by nonresidents.

Nevertheless, this unconventional application of the pardon power to actions that had not yet occurred invited immediate criticism from Republican state lawmakers—including several who were otherwise supportive of medical marijuana legalization. Many argued that Beshear had unconstitutionally usurped the legislature’s power to create law.

Pardons are ordinarily used to relieve a person of a criminal conviction for an action that has already happened and not on a prospective basis. Kentucky House Speaker David Osborne (R–Prospect) noted there was support for medical marijuana but complained the “democratic processes of our commonwealth and our constitution require the hard work of persuading the people’s representatives, reaching consensus, and enacting laws that everyone, even governors, must follow.”

Similarly, Rep. Shane Baker (R–Somerset) said, “You have the governor who has overstepped his authority in trying to create law; those are rights reserved to the policy-making branch of government, which is the legislature.”

Many marijuana activists supported Beshear’s actions, “I’m proud of Beshear for what he did, and we’ve got him on camera saying he will not rescind his executive order until legislators pass something equal to or better than what he’s got,” Patrick Dunegan, director of the Kentucky Cannabis Freedom Coalition, told WLKY.

Beshear acknowledged in the executive order that he was using an unconventional strategy to achieve a policy aim because he was frustrated with Republicans’ continued legislative inaction. When confronted with criticisms of overstepping his powers, Beshear told the press that he would be “happy” to rescind the order if the legislature passed a bill legalizing medical marijuana.

Gov. Beshear’s executive order did spur the Senate into action. Senate Bill 47 to create a limited but legal medical marijuana program in Kentucky secured large majorities in both chambers of the state legislature, and the governor signed it into law on March 31.

The Kentucky law is overly restrictive and allows fewer individuals to acquire medical marijuana than listed in Beshear’s executive order, as it only includes six qualifying conditions: cancer, chronic pain, chronic nausea, epilepsy, multiple sclerosis, or post-traumatic stress disorder. The state’s regulatory agency will license local producers and retailers and can name additional qualifying conditions in the future based on a review of scientific literature.

Unfortunately, participants in the new Kentucky medical program will also face limitations not typically found in most states with legalized medical marijuana, including a continued ban on smoking marijuana. The Kentucky law says medical cannabis products may only be ingested in other forms. Home cultivation is still banned, and local governments can ban cannabis operations. Patient registrations are valid only for 60 days, whereas they typically last one or more years in other states. There is also a limit to the allowable concentration of THC in medical marijuana flowers (35%) and concentrates (70%). These limitations make Kentucky’s new medical marijuana program one of the most narrow in the country. 

Ultimately, Gov. Beshear was on the right side of the medical marijuana issue, and his bold ploy successfully motivated the legislature to pass a medical marijuana bill that will help many people in the state. However, policymakers from both major political parties should avoid infringing upon the separation of powers that serves as a bedrock of constitutional democracy. If an executive can openly contravene the will of an elected legislature, then the executive can arbitrarily deprive individuals of rights as easily as he may grant them.

The post The long road to Kentucky’s limited medical marijuana legalization appeared first on Reason Foundation.

States have increasingly applied social equity goals within their marijuana legalization programs. This effort began at the municipal level, but Massachusetts created a statewide social equity plan within its framework for legal marijuana in 2018, and ensuing states— including Connecticut, Illinois, New Jersey, New York, Virginia, and Vermont—have iterated with alternative approaches to addressing social equity.

Nominally, social equity programs are designed to bring about restorative justice for what are viewed as arbitrary and discriminatory arrests, convictions and incarceration of Americans during the War on Drugs.

However, current approaches to social justice employed by all these states fail to target relief to the affected populations and create new barriers for legacy suppliers of marijuana products to gain legitimacy on a legal market.

Part 2 of this paper reviews the history of the drug war and assesses the extent to which it was designed and executed in a discriminatory fashion. It reviews arrest and use statistics compiled by federal agencies and concludes that the drug war was designed and executed in racially discriminatory ways that created social inequities.

Part 3 elaborates on the collateral consequences that individuals suffer as a result of a prior drug conviction beyond the initial penalty of fines or jail time. Carrying a prior conviction may negatively affect an individual’s ability to pursue gainful employment, attend college, or apply for a business loan for the remainder of their lives.

Part 4 details existing state efforts to promote social equity within their regulated marijuana markets. It highlights instances where these efforts have systematically failed to bring about the restorative justice envisioned by proponents.

Part 5 provides further analysis of these insights by examining whether social equity plans are working as intended and what considerations should be made before undertaking a plan to promote social equity.

Part 6 makes recommendations for how social equity plans should be structured in the future. It focuses on two overarching themes, each with various implications and subcomponents.

First, state-regulated marijuana markets should be structured to intentionally facilitate the transition of legacy suppliers—those who previously manufactured or distributed marijuana on an unlicensed basis—into the regulated market by minimizing barriers to entry. Too often, state efforts to promote social equity within regulated marijuana markets have had the unintended consequence of creating a new version of the drug war.

Second, states can focus on restorative justice measures once they have ceased causing new harm. These include expunging convictions for actions that are no longer a crime and following tort law traditions to redress specific harms suffered by individuals who were directly affected by the drug war. These tort law traditions may extend up to and possibly include the payment of financial damages, for which guidance is provided.

Many commentators have correctly pointed out that the design and implementation of the drug war has been discriminatory toward certain groups.

The data reviewed in Part 2 confirms this is true, but provides nuance regarding certain inflection points in the drug war, including the passage of the 1994 Crime Bill and state liberalization of marijuana laws in the 2010s. Moreover, the harms suffered by individual victims of these discriminatory actions extend beyond criminal sanctions and include a range of collateral consequences.

States have increasingly displayed an interest in redressing these historical harms by including social equity initiatives within their frameworks for legal marijuana. However, the initiatives brought forth by states to date largely fail to target relief toward actual victims of the drug war and have too often been usurped by completely unintended third parties. The failures of state social equity initiatives to date point to a need for an entirely new model of social equity.

States have unnecessarily raised barriers to entry into the legal marketplace and impeded the transition of legacy marijuana suppliers into an orderly market. This basic failure perpetuates the harms of the drug war and undermines legal markets. States should actively seek to minimize barriers to entry in order to facilitate the transition of legacy suppliers into the regulated marketplace.

Once states have ceased creating new harms, they can focus on providing restorative justice to previous victims of the drug war. This should include an automatic expungement for convictions of acts that are no longer crimes.

Other restorative justice provisions, which may include the payment of financial damages, should follow tort law traditions that target relief toward actual victims and prevent third parties from diverting and diluting these relief efforts.

Marijuana social equity misfire: Why state efforts to promote restorative justice within the cannabis industry have failed, and how a market-based approach can provide better outcomes

The post Social equity programs in marijuana legalization laws aren’t achieving goals of helping victims of the drug war appeared first on Reason Foundation.

Jared Harrison of Oklahoma was charged with unlawful possession of a firearm after police found marijuana and a handgun in his car while he was driving to work in 2022. Judge Patrick Wyrick of the U.S. District Court for the Western District of Oklahoma dismissed the indictment, agreeing with defense attorneys that the statute banning “unlawful” users of cannabis from possessing firearms violates the Second Amendment of the U.S. Constitution. “The mere use of marijuana carries none of the characteristics that the Nation’s history and tradition of firearms regulation supports,” Wyrick wrote. 

According to a U.S. Supreme Court ruling last year that struck down a gun control law in New York, any restrictions on gun ownership must be in line with a historical application of the Second Amendment. 

The ban against gun ownership by medical marijuana patients is concurrently being challenged in another federal court by several medical cannabis patients. That suit was led by former Florida Agriculture Commissioner Nikki Fried, but she left office in January, and her successor has indicated the agency will no longer be a plaintiff. Will Hall, a private attorney who assumed the case on behalf of the remaining plaintiffs, said he plans to address this new Oklahoma precedent “in our subsequent filings.” 

In Harrison’s case, the prosecution argued that “disarming presumptively risky persons, namely, felons, the mentally ill, and the intoxicated” is in the public interest. Harrison’s lawyers had argued that the portion of federal firearms law focused on drug users or addicts was not consistent with the nation’s historical tradition of firearm regulation, echoing what the U.S. Supreme Court ruled last year in a case known as New York State Rifle & Pistol Association v. Bruen. 

Judge Wyrick rebutted the prosecution in the Harrison case, emphasizing the fact that marijuana use does not carry any of the characteristics that are supported by the nation’s history and tradition of firearm regulation. The use of marijuana, which can be purchased legally (under state law) in more than 2,000 ordinary storefronts in Oklahoma, opined Wyrick, is not inherently violent, forceful, or threatening. It is not a “crime of violence,” nor does it involve “the actual use or threatened use of force.” 

Despite the government’s authority to protect the public from dangerous people with guns, Wyrick insisted that Jared Harrison’s “mere use of marijuana does not indicate that someone is in fact dangerous, let alone analogous to a ‘dangerous lunatic.’”

Laura Deskin, a public defender representing Harrison, said the ruling was a “step in the right direction for a large number of Americans who deserve the right to bear arms and protect their homes just like any other American.” 

There is no clear evidence that medical marijuana patients are any more disposed to engage in violent crime than other groups. On the contrary, the available evidence indicates that medical marijuana is associated with slightly lower crime rates. A federal ban on gun ownership by medical marijuana users would simply penalize those users on the basis of a medical condition for which a physician has recommended cannabis as treatment. 

Judge Wyrick has made clear there is no public interest served by depriving lawful medical marijuana patients of the means to defend themselves. As cases related to medical marijuana users’ right to bear arms continue to pop up across the country, having this ruling as an established precedent is a positive development. 

The post Federal judge: Restrictions on gun ownership violate medical marijuana patients’ Second Amendment rights  appeared first on Reason Foundation.

The Florida Department of Health, which oversees the state’s medical marijuana program, published emergency regulations last month announcing that it will make 22 additional licenses available to operate a medical marijuana business in Florida. That would double the existing number of medical marijuana business licenses and satisfy statutory provisions requiring the number of licensees to grow in proportion to the population of registered medical marijuana patients in the state.

Florida is years behind schedule in making these new licenses available. Last September, a state appeals court judge admonished the Department of Health’s delay tactics, insinuating that agency lawyers had misrepresented their intentions to the court. The judge also noted that nearly five years had passed without the department making new licenses available as it should have.

Unfortunately, the agency foot-dragging seems destined to continue. The new emergency regulations declare that the new medical cannabis licenses will be awarded in so-called “batching cycles,” in which the state can choose to make as few as one license available at a time. Any applicants applying for that single license would need to pay a non-refundable application fee of $146,000 and have five days to prepare an exhaustive license application detailing security, operational and staffing plans, facility designs, and financial holdings of all proposed owners and operators.

Florida’s Office of Medical Marijuana Use estimates that 150 applicants will seek a license. Those that do not win a license in the first batching cycle would need to re-apply in a subsequent batching cycle and submit another non-refundable application fee of $146,000. The agency reserves total discretion to establish its timing for opening any batching cycle.

This move continues years of medical marijuana obstructionism by Florida’s political class. Amendment 2 required Florida to adopt implementing regulations within six months of its 2016 passage. But the legislature elected to provide no guidance during its spring 2017 session, although then-Gov. Rick Scott called lawmakers into a special session to debate the issue that June.

The legislature adopted a statute that prohibited smokable marijuana products—a provision the state courts later ruled violated the intent of Amendment 2. The legislature also limited the initial number of medical marijuana licenses to 10, allowing wealthy owners of citrus processing facilities to secure two of the licenses.

Perhaps most significantly, the statutory provisions prohibit the state’s medical cannabis licensees from wholesaling any products amongst each other. In most states with legalized medical marijuana, a licensee can operate a cannabis cultivation facility at any scale and can manage and wholesale their products to other manufacturers or dispensaries. In Florida, however, full vertical integration is required, which means a medical marijuana business must have large amounts of money needed to build out multiple types of facilities in an industry where federal law still prohibits access to bank loans and other traditional sources of financing. This requirement effectively established barriers for smaller businesses wishing to operate in Florida.

Current Gov. Ron DeSantis has furthered medical marijuana opposition. DeSantis recently noted the pent-up demand for medical marijuana licensees and said he wants to charge more for the privilege of doing business in the state.

“I mean, these are very valuable licenses,” Gov. DeSantis said. “I would charge them an arm and a leg. I mean, everybody wants these licenses.”

The DeSantis administration also issued a new fee schedule for renewing existing cannabis licenses that raises the two-year fee by more than 2,000 percent, from about $60,000 to $1.33 million. 

“Why wouldn’t we take the opportunity to make money for the state based off those [licenses]?” DeSantis asked rhetorically before the increase. At the time, he elaborated, “I do think that would require a statutory change, and I don’t think that’s something we could just do through administrative rule.” Yet, his administration is doing it through an administrative rule.

The amendment to legalize medical marijuana in Florida got over 71 percent of the vote in 2016. Nearly seven years later, Florida’s politicians should finally stop using red tape, fees, and bureaucracy to block businesses that want to provide legally prescribed medication to patients in need.  

The post Florida bureaucrats again stymie state’s legal medical marijuana market  appeared first on Reason Foundation.

The case was dismissed last month by United States District Court Judge Allen Winsor, who did rule that Fried held standing to bring the suit as she holds oversight over both Florida’s concealed carry licenses and medical marijuana programs.

Fried was joined by two plaintiffs who are registered medical marijuana patients and were barred from purchasing a firearm and a third co-plaintiff who is a gun owner with a qualifying medical condition who would like to participate in Florida’s medical marijuana program. The standing of all plaintiffs was affirmed by Judge Winsor because they suffer direct harm from the Justice Department’s enforcement actions. 

The Justice Department, through its Alcohol, Tobacco, Firearms, and Explosives (ATF) Division, bars participants in state medical marijuana programs from owning or purchasing a firearm. One method for enforcing this prohibition is the inclusion of a question on ATF background checks about whether the prospective gun buyer uses illegal drugs. Although marijuana is legal for medical use under some state laws and legal for adult use in some states, it remains illegal at the federal level. By contrast, the use of federally legal pharmaceuticals with intoxicating characteristics, such as oxycontin, is not necessarily a reason for ATF to deny a gun purchase.

In court briefings, DOJ argued that there is a public interest in prohibiting marijuana users from possessing guns and that its regulations are consistent with historical restrictions on the Second Amendment. The department pointed out that the federal government has previously barred Catholics, Native Americans, panhandlers, and the mentally ill from obtaining firearms, so it has adequate historical precedent to bar medical marijuana patients. The Biden administration received backlash for relying on these comparisons and eventually backed off its claims that marijuana use makes individuals more inclined toward crime. Yet, the administration has continued to argue—in spite of the evidence—that medical marijuana patients might be more disposed to engage in domestic violence. 

Central to Fried’s claim is that congressional riders to federal appropriations bills specifically restrict the Justice Department from using any financial resources to impair state-regulated medical marijuana programs. Judge Winsor seemingly dismissed this claim prematurely, arguing that the department can bar gun possession because marijuana possession is a federal crime: 

Regardless of whether Plaintiffs are prosecuted (or whether Congress allocates funds for their prosecution), possession of marijuana remains a federal crime. The Rohrabacher-Farr Amendment at best precludes prosecution now; it does not forever bless the plaintiffs’ actions. 

Winsor’s opinion does not consider that the Justice Department presumably spent financial resources to include its question about marijuana use on ATF background-check forms and pays staff to review these forms. While DOJ might argue that these enforcement actions are related to the regulation of gun ownership and not medical marijuana programs, it clearly has the effect of discriminating against medical marijuana patients using funds appropriated by Congress. On this basis, the ATF’s screening of prospective gun buyers on the basis of whether they use marijuana for medical purposes would appear as a clear violation of congressional appropriations directives. 

Also, there is no evidence that medical marijuana patients are any more disposed to engage in violent crime than other groups. On the contrary, the available evidence indicates that medical marijuana is associated with slightly lower crime rates. Fried expressed her disappointment in August that the Justice Department “would perpetuate such harmful and offensive prejudicial stereotypes that cannabis users are dangerous or mentally ill.” 

As Fried continues the appeal process, cannabis consumers in Florida and elsewhere should remain highly interested in the outcome. After all, any ruling against the Justice Department could result in positive outcomes for medical marijuana patients across the nation. 

The post Nikki Fried is right to sue for medical marijuana patients’ gun rights  appeared first on Reason Foundation.

Those individuals carrying this conviction on their record face potential barriers to engaging in healthy and productive behaviors, including finding employment, attending college, or securing a home or small business loan. So, the mass pardons will accomplish a great feat for these individuals, even if the overall scope and depth of the pardons are limited. 

However, President Biden’s accompanying message and announcements could have much broader and deeper implications for America’s war on drugs and failed experiment with drug prohibition.

The vast majority of marijuana possession convictions in the United States are under state law. In his remarks, the president urged governors around the nation to take similar actions to pardon those convicted of simple possession under state laws. 

“Just as no one should be in a federal prison solely due to the possession of marijuana,” President Biden said, “no one should be in a local jail or state prison for that reason, either.”

Further, Biden revealed that he would direct Secretary of Health and Human Services Xavier Becerra and Attorney General Merrick Garland to conduct a review of marijuana’s scheduling status under the Controlled Substances Act. This directive could easily become the most consequential portion of President Biden’s actions.

The Controlled Substances Act directs the Department of Health and Human Services, in concert with the Drug Enforcement Administration, to control the manufacture and distribution of substances believed to hold some potential for abuse. The federal agencies divide these substances into five schedules, supposedly representing those with the most purported potential for abuse to the least. 

Marijuana, along with heroin and LSD, are Schedule 1 drugs, meaning the agencies believe they hold no medical value and a high potential for abuse. Those drugs are strictly prohibited in any form. Drugs in lower schedules may be available with medical prescriptions, as federal agencies have recognized some medical value for those substances. These include drugs like cocaine, methamphetamine, fentanyl, and hydrocodone in Schedule 2 and range down to anti-diarrheal medications in Schedule 5. 

In other words, the federal government’s official position is that marijuana is more dangerous than fentanyl. The Centers for Disease Control and Prevention (CDC), meanwhile, reports that fentanyl is 50 times more powerful than heroin and kills 150 Americans every day.

Moreover, the federal government’s outdated position that marijuana holds no medical value is patently absurd. A recent meta-analysis of medical research published by the Journal of the American Medical Association found marijuana can effectively reduce pain, vomiting, and cellular spasticity. Even the National Institutes of Health, a federal agency, now recognizes the effectiveness of cannabinoids in treating various medical conditions. It’s tough to conclude that marijuana fits the Schedule 1 definition in light of these and other facts.

This, along with the president’s urging, means it is likely marijuana could be assigned to a different schedule or de-scheduled entirely due to the review process. That change would effectively end the national experiment with marijuana prohibition, which was based from the beginning on misrepresentations and a desire to create a new role for federal bureaucrats who had just lost their role as alcohol prohibitionists.

Multiple proposals are circulating in Congress to direct federal agencies to remove marijuana from scheduling under the Controlled Substance Act. However, that feat would not require an act of Congress. The executive branch has always held the authority to reschedule or de-schedule marijuana on its own, either through the agency review process or by simple executive order. Congress has gotten involved only because the executive branch has not pursued either action.

A variety of drug policy reform groups and advocates note that Biden’s steps and pardons are important progress. That said, the Biden administration could have gone further and descheduled marijuana itself, but his initiation of the review process signals a major turnaround for someone who was once a primary sponsor of the infamous 1994 crime bill that stiffened penalties for drug-related offenses and significantly escalated the war on drugs. 

President Biden seemed to acknowledge this last week when he said, “Too many lives have been upended because of our failed approach to marijuana. It’s time that we right these wrongs.”

Biden’s pardons and review process are very positive steps, but there is still much more to be done.

The post Biden’s marijuana pardons are a good step, but descheduling marijuana would be a massive step appeared first on Reason Foundation.

“I think it’s something that’s going to really require further study,” Moore claimed, according to Marijuana Moment.

The bill would create a highly limited medical marijuana program in which only patients with certain debilitating medical conditions would be allowed to participate. These include cancer, epilepsy, HIV or AIDS, ALS—amyotrophic lateral sclerosis, Crohn’s disease, sickle cell anemia, Parkinson’s disease, multiple sclerosis, cachexia, severe and persistent nausea, post-traumatic stress disorder, or a terminal illness in which the patient has less than six months to live. Notably absent from this list are broader conditions that make a patient eligible to participate in most state medical marijuana programs, such as severe pain and mental health conditions, including anxiety and depression.

The production side of the medical marijuana bill would be even more restrictive, limiting the total number of available licenses to operate a medical marijuana business to a mere 10 businesses.  Regulators would narrow down the field to 20 applicants and submit them to a commission of political appointees, who would select 10 of the 20 recommended applicants.

This selection method would be highly susceptible to political manipulation or corruption, as appointees could select politically connected applicants to receive licenses. A similar commission in Michigan was scrapped in 2019 after stories of corruption emerged. All the commission’s duties were consequently folded into Michigan’s Marijuana Regulatory Agency, which immediately improved approval timelines as regulators were instructed to strictly apply rules rather than make arbitrary political decisions.

Each of the 10 applicants ultimately awarded licenses in North Carolina would then be able to cultivate and manufacture medical marijuana products and sell those products through medical marijuana dispensaries they also own.  In other words, vertical integration of the supply chain would be mandatory and no wholesale transfers of medical marijuana products would be permitted between licensees. Each licensee would be allowed to open no more than eight dispensaries, meaning a maximum of 80 dispensaries statewide, which is fewer than the number of counties in North Carolina.

Vertical integration requirements in marijuana laws have proven to be challenging in other states for a number of reasons.  For entrepreneurs who are not well endowed with capital, the capital requirements necessary to outfit large cultivation and manufacturing operations along with multiple retail locations can be staggering.  Legal cannabis businesses generally cannot acquire bank loans or other debt capital due to their products still being illegal at the federal level, so these legal businesses are largely funded through private equity. 

Similarly, some entrepreneurs may have the skillset to operate a marijuana cultivation facility, but not have as much expertise in manufacturing or retail.  Each of these stages of the supply chain is a distinct business operation that demands different forms of expertise and shouldn’t be forced together in marijuana laws.

These are not the only shortcomings of the North Carolina medical marijuana proposal. State lawmakers also proposed barring any applicant from the legal marijuana industry if the majority owner of the business had not been a North Carolina resident for at least two years prior. Residency requirements like this are patently unconstitutional. The U.S. Supreme Court has clearly ruled that they impose unnecessary barriers to interstate trade in violation of a body of law known as the Dormant Commerce Clause.

Beyond that, the medical marijuana bill would impose a 10 percent tax on the gross receipts of all licensees. Several states impose no special excise tax on medical marijuana, even if they do so for adult-use marijuana, in recognition of the fact that patients are purchasing these goods to fill a medical need under the supervision of a doctor. Medical marijuana sales would also have been subject to the general sales and use tax.  These taxes would compound the federal tax penalty for marijuana businesses, creating a price disparity between legal and regulated medical marijuana and illicit marijuana that can undermine the orderly, legal market.

In spite of the bill’s shortcomings, it is somewhat encouraging that North Carolina had the bipartisan votes to move a medical marijuana proposal out of at least one legislative chamber. This comes months after South Carolina lawmakers also passed a medical marijuana bill out of their upper chamber. Together, these incremental signs hopefully represent a changing of attitudes toward medical marijuana in the Carolinas, which are among the last remaining bastions of medical marijuana prohibition in America.

Perhaps with another year and more improvement of the legislative language, the Carolinas can launch functional medical marijuana markets that help patients get the relief they need and increase freedom in those states.

The post North Carolina House won’t take up bipartisan medical marijuana bill passed by State Senate appeared first on Reason Foundation.

Mississippi’s medical marijuana market was supposed to be implemented by July 2021.  However, following its overwhelming passage, the mayor of Madison City filed a lawsuit seeking to invalidate the initiative and was ultimately successful in the Mississippi Supreme Court. 

Madison Mayor Mary Hawkins Butler’s argument was far-reaching. She effectively said that no initiative passed in Mississippi over the past 20 years could be valid because state law requires petitioners to collect a minimum percentage of signatures in each of the state’s five former congressional districts to qualify an initiative for the ballot.  After reapportionment in 2000, Mississippi lost a congressional seat and now only has four, making it impossible to comply with those provisions.  Even though the secretary of state relied on an attorney general’s opinion that it could calculate signature submissions based on the boundaries of the old districts, the state Supreme Court ultimately sided with Mayor Butler and fellow opponents of the medical marijuana initiative to overturn the new law.

Since that time, state lawmakers have debated whether to create a more limited medical marijuana market in Mississippi.  During the 2021 legislative session, Republican State Sen. Kevin Blackwell introduced Senate Bill 2765, which was very similar to the legislatively proposed competing initiative that Initiative 65 beat on the 2020 ballot.  That bill passed the State Senate but died in the House last March.  Relative to the highly popular Initiative 65, it included several key drawbacks:

• Senate Bill 2765 would have expired just three years after its effective date, potentially resulting in an abrupt closure to the state’s new legal medical marijuana program.  Moreover, several of the critical rulemaking requirements included no deadlines for adoption, meaning the executive branch could have run out the clock on the authorizing statute without ever implementing its provisions.
• It would have restricted patient eligibility by excluding sufferers of “chronic or debilitating pain,” “intractable nausea,” and “severe muscle spasticity,” or “another medical condition of the same kind of class…and for which a physician believes the benefits of using medical marijuana would reasonably outweigh potential health risks.” Each of those conditions were allowable under Initiative 65 and medical research suggests marijuana can be an effective treatment for these conditions.
• It would have required applicants for a business license to operate a medical marijuana facility to have been residents of Mississippi for five consecutive years—a clear violation of the Dormant Commerce Clause.
• It would have assigned patients to a single dispensary from which they’d be allowed to purchase medical marijuana based on the patient’s zip code. This anti-competitive provision would render the medical marijuana market similar to public school systems in which some families are zoned into failing schools without any realistic alternatives.
• It would have created a two-tier tax system, with medical marijuana taxed at four percent of the wholesale price and seven percent of the retail price.  By contrast, Initiative 65 would have assessed marijuana taxes at no greater a level than the prevailing general sales tax rate.  Indeed, many medical programs do not impose additional excise taxes because it’s recognized that patients are acquiring a medical product.

As Mississippi looks toward the 2022 legislative session, a new version of marijuana legalization legislation is under debate. That plan seems to face misguided, opposition from Gov. Tate Reeves, who at recent press conference, laid out his items of contention with the medical marijuana proposal.  First, the governor claims the law would allow for too much medical marijuana to be sold:

“If 10 percent of Mississippi residents get a marijuana card, that’s 300,000 Mississippians [that] will have a marijuana card.  Under the law in its most recent draft, you can get up to 3.5 grams of the product.  Now…the proponents of this particular bill love to talk about grams and they love to talk about all these other things that nobody fully understands.  But if you look…3.5 grams would allow for all 300,000 Mississippians with a marijuana card to get up to 11 joints a day.  11 joints a day.  It is my view that when you allow 300,000 Mississippians to get 11 joints a day, or approximately 3.3 million joints a day, or almost 1.2 billion joints over a year, that at some point that has become no longer medical marijuana, but recreational marijuana.  If there are 1.2 billion joints floating around Mississippi in any one year, I believe…it is no longer for the purpose of helping those who badly need it.”

Most pre-roll offerings in regulated marijuana markets include either a half-gram or full gram of marijuana, meaning 3.5 grams equates to somewhere between three and seven joints.  Regardless, few patients or consumers purchase from a dispensary every day and some patients may require greater dosing than others depending on their condition.  Gov. Reeves appears to be substituting his medical wisdom for that of the state’s physicians.

Second, the governor argues that workforce participation will decline if medical marijuana is permitted in the state.  There’s no evidence this is true—other states with medical marijuana laws have not experienced a decline in workforce participation and Mississippi currently has the lowest workforce participation rate among all states even without any form of legal marijuana. In fact, to the extent patients are able to successfully treat severe health conditions, it’s reasonable to think a medical marijuana program could allow some disabled individuals to return to the workforce.

Finally, Gov. Reeves argues, “I think the crime and other things that go along with [legalized marijuana]…are likely to go up.” 

Again, crime rates have not accelerated in states with legal medical marijuana programs.  In fact, legal marijuana programs have been associated with a decrease in crime among border states as demand shifts from illegal drug cartels toward legitimate businesses.

Gov. Reeves argues bill sponsors should “recognize that maybe 1.2 billion joints is too many and significantly reduce the total amount of marijuana that can be received.”

The arguments raised by Gov. Reeves and his allies amount to a series of red herrings.  Mississippi’s lawmakers should be looking to the initiative the state’s voters overwhelmingly approved. Rather than make false claims about medical marijuana, state leaders should liberalize their medical marijuana proposal to bring it in line with the data from other states and what their constituents want.

The post Mississippi’s medical marijuana disaster appeared first on Reason Foundation.

Federal law designates any person who uses marijuana, even for medical purposes, as an “unlawful” user of drugs and therefore someone who is not legally eligible to purchase or possess firearms in any context. The federal government has yet to legalize or decriminalize marijuana but has, for the most part, essentially given the green light to states to run legal marijuana programs, recreational and medical, so long as they place reasonable regulations on the market. But the threat of federal action is real and because cannabis is still considered a Schedule 1 drug, the federal government is essentially forcing medical marijuana uses to choose between legally obtaining a firearm or using their legal medication.

A new paper from Ohio State University and Reason Foundation explores how this is a violation of medical marijuana users’ constitutional rights. Helen Sudhoff, the brief’s author, writes:

The federal government prohibits users of Schedule I drugs from purchasing or possessing a firearm. Despite most states having enacted legal medical marijuana programs, marijuana is still federally illegal and designated as a Schedule I substance with no medical value. Individuals who use medical marijuana in accordance with their state’s licensed programs are nevertheless prohibited from purchasing or possessing a firearm under federal law. As such, the onus is placed on medical marijuana patients to either disclose their marijuana use, which disqualifies them from purchasing a firearm and requires they relinquish possession of all firearms, or misrepresent their status as a medical marijuana user, risking fines or imprisonment.

The restrictions that prevent medical marijuana users from using firearms could be leading to injuries and lives lost. A 2012 report by the Obama Administration found that a reasonable estimate for the defensive use of guns per year could be 300,000.  While that number remains controversial and no firm quantitative method for obtaining that number exists, there is no disputing that guns are used defensively and that those uses often prevent injury and death. 

Restricting gun ownership, therefore, restricts a person’s right to self-defense embedded in the 2nd amendment.  In the 2008 Supreme Court case, District of Columbia v. Heller, the high court defended individuals’ right to gun ownership. Heller remains a significant Supreme Court decision because it solidified self-defense as the “core” or “central component” of the Second Amendment. Practically, being able to use a gun for self-defense is the primary purpose of the Second Amendment and any law which infringes upon that right should face scrutiny.

The current legal framework leaves medical marijuana users completely unable to defend themselves in any situation and should be subject to the highest level of court scrutiny. Sudhoff, in the Reason policy brief, argues that the Heller decision rendered unconstitutional the requirement that guns be unloaded, disassembled, or bound by a trigger lock because it “made it impossible for citizens to defend themselves, even in their own homes.” Assembling a gun or removing a trigger lock in a heated moment when the weapon was needed would render it practically useless and therefore infringes upon the core right of self-defense. Yet a requirement that gun owners register their guns was kept constitutional because it did not directly impact an individual’s ability to defend themselves, it simply made gun purchase and ownership a bit more strenuous. 

There is no loophole of any kind in the existing web of drug and gun laws that would allow legal medical marijuana users to legally use or own a gun in any circumstance.  If a medical marijuana patient did use a gun in self-defense, they could still be charged with an offense, which suggests existing laws would fail the test administered by the Heller precedent and should be ruled unconstitutional.

The current legal situation undermines the constitutional rights and potentially risks the health and safety of the 5.4 million medical marijuana users all across the country.  To this point, medical marijuana users have been forced to make a terrible choice of forgoing their prescribed medicine or forgoing their Second Amendment rights.  

With 36 states having legalized medical marijuana, it is far past time for the federal government to rectify this constitutionally flawed situation by recognizing medical marijuana users as lawful citizens who have Second Amendment rights. 

The post Medical marijuana users have Second Amendment rights, deserve the right to self-defense appeared first on Reason Foundation.

The federal government prohibits users of Schedule I drugs from purchasing or possessing a firearm. Despite most states having enacted legal medical marijuana programs, marijuana is still federally illegal and designated as a Schedule I substance with no medical value. Individuals who use medical marijuana in accordance with their state’s licensed programs are nevertheless prohibited from purchasing or possessing a firearm under federal law.¹ As such, the onus is placed on medical marijuana patients to either disclose their marijuana use, which disqualifies them from purchasing a firearm and requires they relinquish possession of all firearms, or misrepresent their status as a medical marijuana user, risking fines or imprisonment.

The following policy brief will address the problems inherent in the federal government’s current regulatory framework for the right to keep and bear arms in the context of medical marijuana use, circumstances that implicate the privilege against self-incrimination, and how to revise the regulatory framework in accordance with the guarantees of the Constitution.

How the Gun Control Act and the Controlled Substances Act Prohibit Medical Marijuana Patients from Purchasing or Possessing A Firearm

The federal government regulates the sale, distribution, and ownership of firearms through the Gun Control Act of 1968 (“Gun Control Act”).² The Gun Control Act regulates the sale of firearms, primarily “to prevent guns from falling into the wrong hands.”³ Under § 922(g) of the Act, the government identifies certain classes of individuals who are prohibited from owning or possessing a firearm, including felons, the mentally ill, and illegal aliens in the United States.⁴ They also identify individuals who are “an unlawful user of or addicted to any controlled substance” as a class of persons wholly prohibited from owning or possessing a firearm.⁵

Controlled substances are classified and defined in the Controlled Substances Act of 1970.⁶ Under the Controlled Substances Act, marijuana is designated as a Schedule I drug.⁷ This designation defines the plant as a “drug…with no currently accepted medical use and a high potential for abuse.”⁸ Since marijuana’s scheduling under the Controlled Substances Act, the federal government has gone on to define marijuana as a cannabis plant with an excess of 0.3% THC, whereas if a cannabis plant contains up to 0.3% THC it is considered a hemp cannabis plant, not marijuana, and is legal to possess and use.⁹

To add to this complexity, the federal government has also authorized the sale of Marinol, a lab-derived, synthetic form of THC, and has designated Marinol as a Schedule III drug. Schedule III drugs are defined as drugs or other substances that have less potential for abuse than substances in Schedules I and II and are currently accepted for medical use in the United States, with abuse of the drug possibly leading to only a moderate or low physical dependence or high psychological dependence.¹⁰ Despite Marinol being lab-derived instead of naturally derived from a marijuana plant, there are no differences between the chemical structures or psychological effects of THC in a marijuana plant and the THC in a Marinol capsule.¹¹ Therefore, the federal government has recognized some medical value associated with the use of THC, contrary to marijuana’s designation as a Schedule I drug.

Notwithstanding marijuana’s federal designation as lacking medical value, 36 states, the District of Columbia, Guam, Puerto Rico, and the U.S. Virgin Islands have legalized state-licensed medical marijuana programs.¹² Through these programs, individuals may be recommended medical marijuana to aid or cure their ailments or illnesses.¹³

Further, under these programs individuals will not be criminally penalized for merely possessing or using medical marijuana in accordance with their state’s program.¹⁴ However, even though the majority of states recognize medical value of the marijuana plant, the federal government’s designation of marijuana as a Schedule I drug supersedes any state laws indicating otherwise.¹⁵ Consequently, legal state medical marijuana programs are still considered federally illegal, and medical marijuana use is still considered a violation of federal law.¹⁶

When a gun owner uses medical marijuana in accordance with their state’s program, they are nevertheless in violation of the Gun Control Act.¹⁷ Under § 924 of the Gun Control Act, violations of § 922(g) are punishable by a fine and a term of imprisonment up to 10 years.¹⁸ An individual who uses medical marijuana has two opportunities to violate § 922(g): when they purchase a firearm and when they own or possess a firearm. When purchasing a firearm, prospective gun purchasers are required to complete a Firearms Transaction Record – Form 4473 for the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”).¹⁹ Prospective gun purchasers are required to self-disclose whether they are “an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance[.]”²⁰

The form further warns that “[t]he use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medicinal or recreational purposes in the state where you reside.”²¹ However, there is no similar mention of other specific prohibited drugs or substances, including heroin, 3,4-methylenedioxymethamphetamine (“ecstasy”), or lysergic acid diethylamide (“LSD”), which all are mind-altering substances and impact a person’s ability to safely use a firearm.²² Moreover, prospective gun purchasers who self-disclose that they use marijuana in accordance with their state’s legalized medical marijuana programs will be prohibited from purchasing a firearm. ²³

On the other hand, no similar warnings are given to current gun owners who become medical marijuana patients. When an individual is initially prescribed or recommended marijuana, there is no requirement for the treating physician to consider the potential legal impacts of their patients’ marijuana use, much less the implications for their right to keep and bear arms. Rather, the onus is on the gun owner to know they are in violation of the law when consuming a federally scheduled drug and should cease their illegal conduct on their own accord.²⁴

Consequently, under the current federal regulations, if a prospective gun purchaser fails to self-disclose their medical marijuana use while seeking treatment in accordance with their state’s program, or if a current gun owner begins using medical marijuana, they may be subjected to fines or imprisonment imposed under § 924.²⁵

This confusion is amplified for Marinol patients who are either purchasing or possessing a firearm. While nothing in the Gun Control Act prohibits Marinol patients from owning or possessing a firearm, Marinol patients will still produce positive drug tests for marijuana. Therefore, even if a person is legally using Marinol in accordance with their prescription, they nevertheless may be required to demonstrate that they have acted in accordance with federal law.

Moreover, marijuana users have a duty to know they are in violation of § 924 and this duty is distinct from other classes of persons defined under § 922(g). In Rehaif, the Supreme Court considered the scope of the word “knowingly” under § 924(a)(2)—the section that defines the punishments for all categories of persons described in § 922(g).²⁶

The court held that the defendant’s conviction for possession of a firearm as an alien unlawfully in the United States, in violation of § 922(g)(5) and § 922(a)(2), was rendered in error because the government failed to prove both that the defendant knew he possessed a firearm and that he knew he belonged to a relevant category under the Gun Control Act.²⁷

The court recognized that while typically “ignorance of the law is no excuse,” that maxim only applies in circumstances where the defendant has the requisite mental state with respect to the elements of the crime but is unaware of a statute prohibiting their conduct. But, the maxim does not apply where the defendant “has a mistaken impression concerning the legal effect of some collateral matter and that mistake results in his misunderstanding the full significance of his conduct,” thereby negating an element of the offense.”²⁸

Thus, the Supreme Court held “the word ‘knowingly’ [in § 924(a)(2)] applies both to the defendant’s conduct and to the defendant’s status.”²⁹ So, to convict a defendant under § 924(a)(2), “the Government . . . must show that the defendant knew he possessed a firearm and also that he knew he had the relevant status when he possessed it.”³⁰

However, the standard set forth in Rehaif for evaluating knowing violations of § 924 by a person identified in § 922(g) has not been applied to individuals who are “unlawful user[s] of or addicted to any controlled substance,” as defined in § 922(g)(3).³¹

Instead, the Sixth Circuit has held to prosecute under § 922(g)(3), “the Government . . . must prove that defendants knew they were unlawful users of a controlled substance, but not, . . . that they knew unlawful users of controlled substances were prohibited from possessing firearms under federal law.”³²

Consequently, failure to instruct the jury that defendants must have known they were users of a controlled substance in order to be guilty of violating § 922(g)(3) was not in error.³³

In sum, the Gun Control Act prohibits individuals who are “unlawful user[s] of or addicted to any controlled substance,” from owning or possessing a firearm.³⁴ These unlawful users include medical marijuana patients who use marijuana as recommended by their treating physicians, in accordance with their state’s program, which constitutes knowingly using a federally unlawful substance.³⁵ If a person violates the act by using medical marijuana while purchasing or possessing a firearm, they could face fines and a term of imprisonment up to 10 years.³⁶

Full Policy Brief: Blowing Smoke at the Second Amendment

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At the time, proponents believed residency requirements would be necessary to ensure that state residents reaped the economic benefits of the newly legal marijuana industry.  Others argued that residency requirements would help deter the diversion of marijuana inventory to the black market while ignoring the already onerous combination of owner background check requirements, round-the-clock video surveillance, and live inventory tracking using radio-frequency identification tags aimed at prevent diversion to black markets.

Colorado, Maine, and Oregon are among the states that have abandoned residency requirements in recent years, while several other states continue to impose them. In reality, these residency requirements have limited the universe of potential investors who could be involved in the marijuana industry and capitalize on startup companies.  Marijuana business owners cannot apply for bank loans or small-business loans because of federal restrictions on providing financing to the industry.  As a result, marijuana businesses must rely almost exclusively on private equity markets to secure the funds needed. This can include significant funding to build out elaborate facilities needed to replicate ideal outdoor conditions, including sunlight, inside enclosed industrial warehouses.  Thus, expanding the universe of private investors who could provide funding to legal marijuana entrepreneurs would be tremendously helpful for many marijuana companies. 

As cannabis attorney Brian Vicente said of Colorado’s residency requirements, “It’s prevented money from flowing into Colorado to invest in our homegrown businesses.”

Most minority owners in marijuana companies are simply passive investors not actively involved in the management of the business.  They provide financing in exchange for a share of ownership in the business while recognizing that the industry bears both unique risks and unique opportunities for return on their investment.  Without access to these individuals, many marijuana entrepreneurs would have a difficult time getting their businesses off the ground.

The framers of the U.S. Constitution foresaw the opportunities that would arise from free economic exchange across the states.  That’s why they enshrined the Commerce Clause into the Constitution.  Federal courts have interpreted this clause as granting Congress the ability to prevent states from erecting arbitrary barriers to trade and effectively ensuring a free-trade zone across the entire United States.  According to federal jurisprudence, any state law that discriminates against interstate or international commerce is in violation of the Commerce Clause.

Making business investments across state lines is clearly a form of commerce and a number of legal disputes have arisen around state residency requirements within state-regulated marijuana markets.  Last month, a federal judge declared Missouri’s requirement that a majority of owners in any business licensed within the state’s medical marijuana program be Missouri residents was unconstitutional.  A Pennsylvania resident who wished to invest in a licensed medical marijuana company in Missouri had filed the suit, arguing,

“The real effect of the residency requirement has been and will continue to be to stifle Missouri’s medical marijuana program by severely restricting the flow of investment into the state.”

Advocates of residency requirements may point to a similar case in Oklahoma where another federal judge dismissed a claim by an Oregon company that wished to invest into the Oklahoma market, although that judge’s ruling didn’t touch on the underlying issue.  In that case, the judge simply claimed he could not provide relief to a company that wished to violate federal law by trafficking in marijuana and he declined to rule on the merits of the underlying argument.  When judges have ruled on the implications that the Commerce Clause has on state residency requirements, they have uniformly found those requirements unconstitutional.

This track record should prompt both lawmakers and regulators in states that have legalized marijuana but maintain these residency restrictions to reconsider them.  There should be a free market in the financing of state-legal marijuana ventures.

The post State Residency Requirements For Legal Marijuana Markets Are Unconstitutional appeared first on Reason Foundation.

The federal Gun Control Act (GCA) of 1968 states that no “unlawful user” of a controlled substance, such as cannabis, shall be allowed to purchase or own firearms. The Bureau of Alcohol, Tobacco, and Firearms (ATF) has reaffirmed several times that it still considers medical cannabis to be an illegal substance, as defined by the Controlled Substances Act (CSA) of 1970, and therefore designates anyone with a medical marijuana card as ineligible to purchase or own firearms.  

This restriction falls more sharply on medical marijuana users than recreational users since they are registered in a government database that can be easily cross-referenced.  Recreational marijuana users, by contrast, can effectively purchase marijuana anonymously and are therefore not subject to this scrutiny, although they would be forced to lie on the firearm background check form 4473 in order to complete a purchase.

Shortly after Michigan legalized medical marijuana, the ATF directed state officials to cease using a certain background check system because it didn’t include medical marijuana registrations and reminded them they needed to include “unlawful” medical users in all firearm background checks.

Pennsylvania responded to a similar message received from the ATF saying that the GCA and CSA lacked the authority to coerce a state into taking an administrative action to facilitate federal scrutiny and surveillance by joining its medical marijuana database with a commonly used criminal justice database called JNET.

The Missouri bill signed into law this month provides an even bolder response to the issue. The new law challenges the constitutionality of the CSA and GCA by pointing to the Second and 10th Amendments. The 10th amendment says states have legal jurisdiction over any policy not explicitly enumerated by the U.S. Constitution for federal jurisdiction. For example, national security and taxes are explicitly assigned to federal authority, but the Constitution provides no direct textual support for marijuana prohibition or policies.

The Missouri legislation, House Bill 85, implicitly argues that the state—not the federal government—should determine whether citizens who possess marijuana are legally defined as “law-abiding citizens.”  The bill text states:

“[R]eserving for the state governments the power to legislate on matters concerning the lives, liberties, and properties of citizens in the ordinary course of affairs… the term ‘law-abiding citizen’ shall mean a  person who is not otherwise precluded under state law from possessing a firearm.”

Missouri is clearly saying that the state has the sole ability to determine who is a law-abiding citizen in matters concerning “liberties” and “properties.”   Additionally, the Second Amendment provides broad firearms protections.  Missouri has already chosen to designate medical marijuana patients as legal under state law and this bill asserts Missouri’s 10th Amendment constitutional right to make that designation over the federal government. 

The Controlled Substances Act even contains a 10th Amendment-like clause which says when in “positive conflict” between state and federal law where both cannot stand, that state law should take precedence in areas that would  “otherwise be within the authority of the state.” 

Missouri’s designation of medical marijuana users as law-abiding citizens, therefore, takes precedence over the federal government’s designation.

The new Missouri law acknowledges the federal constitution as a compact among the states, and as such is subject to judgment by each party as to whether it is executing its assigned duties properly. It says, “each party (state) has an equal right to judge for itself as to whether infractions of the compact (Constitution) have occurred, as well as the right to determine the mode and measure of redress (Author’s additions).” 

In this case, the mode of redress is to deny a federal designation of “unlawful” status to anyone who possesses marijuana via the 10th Amendment, effectively re-establishing their 2nd Amendment rights to purchase and possess firearms in the process.

With 36 states having legalized medical marijuana, it becomes easy for some to forget that marijuana’s federal status continues to create serious legal questions without clear answers.  Missouri’s HB 85 offers a compelling 10th Amendment argument that states may have rightful jurisdiction in this area. 

In essence, the entire marijuana legalization movement has embodied the ideal of ardent federalism.  The Missouri law could lay the groundwork for other states that have legalized medical marijuana to extend their rejection of federal marijuana law. States can re-assert their authority to designate medical marijuana cardholders as law-abiding citizens within their jurisdiction via the 10th Amendment and stop the injustice of legal medical marijuana patients being banned from gun ownership.

The post Missouri Law Restores Medical Marijuana Users’ Second Amendment Rights appeared first on Reason Foundation.

Black individuals in Virginia were five times more likely to be arrested than white individuals for marijuana possession between 2015 and 2019, according to the Virginia Joint Legislative Audit and Review Commission. The commission’s 2020 report found this recent five-year period was Virginia’s heaviest enforcement of marijuana possession laws in the state’s history and there was disproportionality not only in arrest rates but also in the likelihood of an arrest turning into a court proceeding.

The report also found that the likelihood of a black individual being arrested for marijuana possession was higher than a white individual in every single one of the state’s 88 localities (only those with sufficient data) measured in the report. The average Virginia locality had a disproportionality rate of five between black and white individuals.

However, enforcement within some localities showed far greater disparities. Albemarle, Hanover, and Arlington counties were all significantly higher than the average. Carroll County’s record was most disturbing: a black individual was 40.4 times more likely to be arrested for marijuana possession than a white individual. These examples can be seen in the chart below.

Discrimination can be seen not only in disparate arrest rates but also in how individuals’ cases are treated after an arrest has been made. Black people were more likely to have their cases advanced to court hearings in 83 Virginia localities. Black individuals in Wythe County were the worst off—they were 11.8 times more likely to have their arrest turn into a court case than a white individual.

These drug laws, arrest rates, and court case disparities are unjust and nonsensical. If they are not viewed as serious offenses worth pursuit by a prosecutor when the offender is white, then they should never be pursued at all in a liberal society that values equality before the law. Thankfully, Virginia is on the road to righting some of its historical wrongs. But tackling racism within drug law enforcement is not an easy task, nor a quick one.

This process has moved slowly in Virginia when compared to several other states. In 2015, a Virginia bill decriminalizing cannabis was rejected by the state legislature. Virginia’s bills that decriminalized the possession of small amounts of marijuana and expunge prior convictions finally passed in 2020 are an important step in the right direction.

Similarly, medical marijuana dispensaries did not appear in the state until 2018, and access to medical marijuana has remained difficult for many of the state’s patients in need. For example, in 2019, only 0.7 percent of licensed doctors in Virginia had registered to write medical cannabis recommendations.

Now, however, Virginia is poised to join the 15 states that have fully legalized marijuana for adult use, provided that lawmakers can resolve differences between various versions of a bill that passed each legislative chamber.

There are many reasons to pursue the legalization of marijuana, including freedom of choice for consenting adults, reducing the reach and harms of illegal drug markets and cartels, and curtailing youth use through a safe, regulated, age-restricted marketplace.

However, policymakers and citizens shouldn’t lose sight of the fact that the drug war was expressly motivated as a means to harass racial minorities and evidence shows it has often been used that way.  It’s an affront to the very principles of our nation that such discrimination would be enshrined in law. These drug laws should never have been enacted, but it is positive to see Virginia seems set to join other states in repudiating the failed drug war and its illiberal legacy.

The post Virginia’s Drug Law Enforcement Disproportionately Impacts Black Citizens appeared first on Reason Foundation.

As a result, recreational marijuana will soon be legal in four more states.

In Montana and South Dakota, a significant majority of voters approved legalizing adult-use marijuana. The measures in both states are fairly detailed but state agencies will be tasked with promulgating regulations for marijuana markets in 2021.

New Jersey voters approved legalizing adult-use marijuana by an even larger two-to-one margin in a very simple measure that now requires the state legislature to pass implementing legislation in 2021 and regulations to be created by the Cannabis Regulatory Commission.

Arizona voters, after voting down marijuana legalization in previous elections, finally approved it this year. Unfortunately, the approved measure is a mixed bag that does not really create a free market and gives incumbent medical marijuana firms control of the recreational market.

In each of the four states legalizing adult-use marijuana, 2021 will be a busy year of implementing rules created by the measure or promulgating new ones. All four states may well see both legislation to refine or develop additional requirements or restrictions and rulemaking by state agencies.  It remains to be seen how much that process will be influenced by lessons learned in states that already went through the legalization process.

At the same time, Mississippi and South Dakota voters approved medical marijuana proposals.  In South Dakota, a medical market will be rolled out in parallel with recreational marijuana markets and is unlikely to be complex or contentious.

Mississippi’s path to approving medical marijuana was a bit wild, with two competing measures making their way to the ballot this year.  One was put on the ballot via a campaign to gather signatures from registered voters, and it took an approach to medical marijuana built on programs in other states and giving doctors control of prescribing. In response, the state legislature placed a very restrictive medical marijuana measure on the ballot under which the state would closely control prescribing medical marijuana.  Voters overwhelmingly chose the first measure.

In both Mississippi and South Dakota final rules governing medical marijuana will be crafted by state agencies in 2021.

Reason Foundation’s drug policy experts will be offering technical assistance in all five states based on our framework and best practices for creating open, fair and free markets for adult-use marijuana.  Legal cannabis markets that are overly restricted and taxed, for example, encourage the continuation of substantial black markets and should be avoided in each of these states.

The overall shifting views of the public on drug issues are evident in other initiatives. In Washington, D.C., voters approved a referendum stating it is the will of the voters that the police and prosecutors not pursue the criminal arrests or punishment of citizens violating laws governing psychedelic plants.

Finally, and importantly, Oregon’s voters approved the decriminalization of all drugs.  Manufacturing and sale of illegal drugs will not be permitted in the state, but the possession and use of drugs will no longer be criminal. This approach is similar to the approach taken decades ago in Portugal, with great success. Rather than addressing drug use with arrest, prosecution, and incarceration, Oregon will seek to curtail drug abuse through four approaches:

1. Patient-centered treatment, including through addiction recovery centers that offer 24-hour triage centers to meet with patients and enroll them into evidence-based recovery programs;
2. Peer support and recovery services to maintain contact with each patient, monitor their progress and sobriety, and provide mentorship;
3. Transitional housing for drug-addicted patients who need to get off the street and find employment; and
4. Harm-reduction interventions to ensure drug use does not result in avoidable deaths or the spread of disease.

Collectively, these actions by voters represent a long-overdue attempt to change the course of how we deal with adult-use of drugs and the problems of drug abuse in America. These shifts away from the failed War on Drugs that has created massive collateral damage throughout society to an evidence-based harm reduction approach are important and positive steps.

The post Voters Across the Country Decriminalize Drugs, Reject Failed War on Drugs appeared first on Reason Foundation.