Gun Ownership for MMJ Patients in Delaware?

Can You Own a Gun with a Medical Card in Delaware?

No. Although Delaware law prohibits residents from possessing firearms if they are in possession of a controlled drug, the state does not define medical marijuana as a controlled substance. While this makes possessing firearms and medical marijuana technically legal, licensed gun sellers do not sell firearms to medical marijuana cardholders because federal law bans marijuana users from possessing guns.

Can Delaware Medical Cannabis Patients Legally Carry Firearms Without Permits?

MMJ patients in Delaware are not issued concealed carry deadly weapon permits, pistol permits, or other forms of firearm licenses. Typically, Delaware authorities will not issue gun permits to known marijuana users.

Does Delaware Require Background Checks for MMJ Patients Seeking Gun Licenses?

A background check requirement is a key part of the state’s gun laws, aimed at ensuring that only eligible individuals are allowed to buy firearms. This process is required for all persons seeking to purchase a gun in the state, including MMJ patients.

Pursuant to federal law, individuals are generally prohibited from purchasing firearms if they have been convicted of a domestic violence misdemeanor or felony or if they are subject to a court order related to domestic violence or a severe mental condition.

Can You Get a Delaware Medical Marijuana Card After Getting a Gun License?

You may obtain a medical marijuana card after getting a gun license in Delaware. However, that does not make it legal to possess both licenses at the same time. You may still be prosecuted under federal law if you are caught with a gun while registered as a medical marijuana patient.

After the expiration of your medical marijuana card, you may truthfully answer “no” to the question verifying if you are an unlawful marijuana user on Form 4473, required when purchasing a firearm. Note that under federal law, all medical marijuana users are considered unlawful users of marijuana. While you remain a medical marijuana patient, your spouse may be able to purchase a gun if they can demonstrate that you do not have access to the firearm under Delaware gun storage laws. Pursuant to the state’s firearm storage law, it is a crime to recklessly or intentionally store or leave a loaded gun within easy access of an adult or child.

Legal History of Gun Ownership for MMJ Patients in Delaware

Lawmakers in the Delaware legislature have made moves to remove the prohibition on medical marijuana patients in the state from possessing firearms. In 2019, Senate Bill 79, sponsored by Senator Anthony Delcollo and passed in the first half of the General Assembly Session, proposed to allow medical marijuana patients under the Delaware Medical Marijuana Act access to firearms. Senator Anthony Delcollo argued that if an individual were able to get a concealed carry permit prior to developing a serious medical condition requiring medical marijuana treatment, such a person should still be allowed to hold onto the gun permit afterward without being penalized. However, in January 2020, the bill was released by the Delaware House Public Safety and Homeland Security Committee.

In a similar vein, Representative Andria L. Bennett sponsored a bill (House Bill 276) in 2022 to allow registered qualifying medical marijuana patients under the state's Medical Marijuana Act to purchase or possess firearms. Although the bill passed unanimously in the House, Governor John Carney vetoed the bill and clarified, citing fears that the bill would create confusion about the rights of Delaware medical marijuana patients under federal law.

Although Governor John Carney stated that registering as a qualifying medical marijuana patient in the state does not impact the ability of a Delawarean to possess firearms under current state law, a registered medical marijuana patient who possesses a firearm will be committing a felony if they fill their medical cannabis prescription.

What Federal Law Says About the Firearm Rights of Medical Marijuana Users

Federal regulations relating to the possession of firearms for cannabis users have a long-standing history dating back to the Gun Control Act of 1968. The Act established a clear provision prohibiting individuals addicted to or using any controlled substance from possessing firearms.

Although Delaware's stance on firearms possession for medical marijuana patients may be ambiguous, the federal position on the matter is clear. The United States Food and Drug Administration (FDA) classifies marijuana as a Schedule I controlled substance, maintaining that it lacks recognized medicinal value, carries a high potential for abuse, and is, therefore, illegal to possess and use. Under federal law, anyone using marijuana, even for medical purposes, in a jurisdiction where marijuana has been legalized is regarded as having committed a crime. Consequently, in order to keep citizens safe, marijuana users are disqualified from purchasing a gun.

In 2011, the Federal Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) issued an open letter to all licensed firearms dealers, explicitly stipulating that individuals holding a medical marijuana card cannot legally purchase firearms from licensed dealers. This regulation faced a legal challenge when a medical marijuana card-holding patient contested it in the case of Wilson vs. Lynch. The patient claimed that the law violated the provisions of the Second Amendment, which allowed citizens to keep and bear arms.

However, the 9th U.S. Circuit Court of Appeals upheld the prohibition on selling firearms to medical marijuana patients, asserting that such restrictions do not infringe on their Second Amendment rights.

Following the 9th U.S. Circuit Court of Appeals ruling, the ATF amended Form 4473 to require prospective gun buyers to mark yes or no to the question, verifying if they are unlawful cannabis users or addicts as defined under federal law. MMJ card patients who respond with a no are liable to be charged with perjury. According to the ATF, the possession or use of marijuana is unlawful under federal law regardless of whether it has been decriminalized or legalized for recreational or medical use in the state where the prospective gun buyer resides.

In contrast to the 9th U.S. Court of Appeals ruling, a three-judge panel of the 5th U.S. Circuit Court of Appeals based in New Orleans ruled in August 2023 that federal restrictions prohibiting cannabis users from possessing firearms are unconstitutional.

The ruling overturned the conviction ruling in the legal case of Patrick D. Daniels, a Mississippi resident from Gulfport. Daniels was convicted of possessing two firearms during a routine traffic stop. While Daniels admitted to regular marijuana use, a DUI charge was not included in the case.

The decision by the 5th U.S. Circuit Court of Appeals referenced the 2022 U.S. Supreme Court verdict, often referred to as New York State Rifle & Pistol Association v. Bruen. This ruling emphasized that gun laws must be firmly rooted in historical precedent. Note that the 5th Circuit Court's ruling, which upheld an "as applied" challenge, is technically limited to one case. Still, this decision is expected to inspire legal challenges to various firearm regulations across the nation.

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