Gone to Pot June 2021 Kevin Jensen
Things are about to get interesting in South Dakota. As most South Dakota readers already know the medical marijuana bill, Initiated Measure 26, passed in the 2020 General election. What that means is that after July 1, many individuals will have some serious decisions to make; do I get a medical marijuana card, or do I keep my guns. Scoff if you will, but I am serious! Here is what you need to know. The Federal Gun Control Act of 1968 and the Federal Omnibus Consolidated Appropriations Act of 1997 make it illegal for any person who is an unlawful user of controlled substances to ship, transport, receive or possess firearms or ammunition.”
If you have purchased a firearm from any dealer in the recent past, you had to complete a 4473 form before the dealer could transfer the firearm to you. This includes all handguns and long guns. The 4473 is the required firearms transaction record every gun dealer must have you fill out, sign and keep in their records – forever, or until discontinuing their business. If they discontinue business they must surrender those records to the ATF to be archived, indefinitely.
There was a recent change to a question on the ATF 4473 form that you must take seriously. Question 21 (e) asks; “Are you an unlawful user of, or addicted to marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance? Warning: The use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medical or recreational purposes in the state where you reside.” There are only 2 correct answers, YES or NO.
Here is where the most critical choice of your future with regards to firearms must be made. If you answer “YES” because you have a medical marijuana card, the dealer cannot proceed with the sale, and you leave without the gun. If you have a medical card and answer “NO” you have just committed perjury on a Federal form. The penalty for this offense is 5 years in a federal prison and a $10,000 fine. So you’re still not sure if this is accurate information? There have been many cases in a number of states where people have been charged and convicted of perjury and illegal firearms possession. The 9th Circuit Court of Appeals, the most liberal court in the US, upheld a lower court conviction in one such case. Until a future congress makes marijuana legal you have to make a choice, own guns or use marijuana. Once you become a Federally convicted felon you can no longer own the guns you currently have, and never buy one in the future. An exception exists for those who had their records expunged or had their rights restored through the court system.
This next scenario should be obvious but I will explain what can easily happen. Right now the state of South Dakota is accepting RFPs (requests for funding proposals) for a third party agency to create a registry of medical marijuana card holders and distribute the cards to those who qualify with medical conditions appropriate for the use of marijuana. The state will not maintain the registry. The registry is NOT considered part of your medical record and is not protected by HIPPA. This is a controversial subject at this time but since HIPPA is a federal requirement and medical marijuana is still illegal under federal law HIPPA does not protect certain data. However, for the distributor who collects your ‘other’ health information for their records, there is a growing concern about whether they must be HIPPA compliant with your ‘other medical history.’ Many of these dispensaries will likely treat your record as a HIPPA protected record but the fact that you have a card will likely be open for law enforcement to inspect. It will get complicated going forward.
If the medical card data is available to Law Enforcement you could possibly someday answer a knock on your door and be served with a search warrant to collect your guns, all of them. You’re still not buying it? Go to your computer and search “guns and marijuana” and you can get information from every state with medical or recreational marijuana and the answer will always be the same – you must choose one or the other, guns or pot.
If you have a concealed carry permit issued to you, law enforcement could cross reference the medical marijuana card database with the concealed carry list. If you are like me, my first thought was that only the Secretary of State of South Dakota has access to that list. Unless the law is changed in the future the permit list is accessible to law enforcement for the purposes of investigating a crime, which in this case it could be justified. Until we see this actually tested and someone files a lawsuit, I am not sure which way the courts would lean. In Florida and a number of other states, those lists were compared and there were warrants issued and arrests made.
It is not just the Federal authorities that are telling us we can’t have it both ways; the cannabis industry also recognizes the fact that you cannot have both marijuana and guns. This is a quote from CannabisRxHealth.com; “While many states have voted to legalize medical cannabis, many voters might not know that legalization comes with some limitations. The law states that you cannot have both a concealed carry license and a medical marijuana card. So, can medical cannabis patients own guns? No. Even though medical marijuana has been voted into legality in most states, it’s still viewed as a Schedule 1 drug by the Federal government. Thus, since Federal laws override state laws, you cannot own a gun if you have a medical marijuana card.”
So the choice is clear – guns or pot. Until the Federal Government eases the law, there is nothing the state can do to change this, so do not expect the legislature to do anything. The best the legislature could hope to do is forbid any state resources being used to enforce the federal law.
Medical Marijuana laws and rules start July 1, 2021 for South Dakota so you will have to wrestle with this decision. Readers of this publication in other states that have medial or recreational marijuana also need to heed this warning. If you are considering medical marijuana as an alternate form of self-medication, the choice here is a reality, and it is not likely to change soon. There are some who see the medical marijuana card as a way to simply circumvent the law and smoke recreationally. For those people, the risk is all yours! For me the choice is clear, there are plenty of other forms of medicine to use, my right to self-defense is more important to me.
If you have any questions you can always reach me at email@example.com.
(Kevin Jensen is a 3 term current legislator in South Dakota serving as Majority Whip and Chair of the House Health and Human Services Committee and is a strong Second Amendment supporter.)
I generally try to stay away form the subject of politics in my articles out of respect to the publisher, editor and you the readers. No political party has a lock on the outdoors, hunting and fishing however these things are generally more in the conservative perspective. Recent events around the country are becoming more than just a little alarming and it time we had this discussion.
A little background may help you understand my position. I am a member of the South Dakota House of Representatives and just starting my second term. In my first term I served on the Agriculture and Natural Resources Committee and the House Judiciary committee. In the former we heard all the hunting, fishing and farming bills and in the latter we heard all the firearms bills. In this term I was elected as a Majority Whip, I serve on the State Affairs Committee and was appointed to Chair the House Health and Human Services committee.
So, you might ask, how do these mew committees further my involvement in the area of hunting, fishing and shooting sports? Many controversial bills dealing with subject matter like the Article V Convention of States and Constitutional Concealed carry are heard in State Affairs. You may think Health and Human Services is a bit of a stretch for an outdoors writer, but my appointment to that committee may have been perfectly timed. This committee will hear any bills pertaining to mental health issues, and that’s how I get to the subject of this months article.
If you have not been paying attention to the news and are not familiar with “Red Flag” laws, please do not stop reading now, and please do not ignore what is happening. Red flag laws in various forms have been passed in 13 states and several more are considering them as you read this. The intent of this kind of law is like that of many laws, it is meant to help protect the general public. But conservatives and moderates inadvertently allow these laws to play right into the hands of the liberal gun grabbers. Over the last eight to ten years there has been a common theme in almost all of the mass shootings, particularly in the school shootings. Almost to a person, these individuals had some psychological issues, were on meds (or failed to take them) and after the shootings everyone asked why nothing was done when people had early warnings these people might commit these heinous crimes. The media attention to these mass shootings has given rise to the universal cry – why didn’t someone intervene!
It gets a little complicated at the federal level but in the early years of the previous administration in Washington there was a concerted effort to expand mental health evaluations in the juvenile population and the result is called a ‘Serious Emotional Disturbance’ assessment. I could factually argue that it was an intentional and well planned beginning to what we are seeing transpire today with the red flag laws, but some would say my ‘tinfoil hat’ is a little off center. You can be the judge. The Feds came up with a new funding stream to perform a mental health evaluation on all juveniles who had emotional issues or violated the law and those evaluations are part of their permanent record. (disclaimer – my wife owns an agency that works with youth in trouble and these assessments really are happening all across South Dakota)
One of the offshoots of this movement are new laws that allow your relatives, or in some states even your neighbors or complete strangers to file a complaint stating you are acting strangely or have made recent threats or remarks about hurting someone. Your behavior raises a “Red Flag” in someone’s mind and they fear you may be the next mass shooter, or at the minimum you’re a threat to someone. In most states these are called ‘extreme risk protection orders.’ The bar is set very low for the validity of these complaints but if you are on the receiving end your life can become a nightmare.
If you are the recipient of one of these orders one of the first things that happens is law enforcement shows up at your door, sometimes peacefully and sometimes as a raid, and they confiscate all your firearms and ammo. The burden of proof that you are not a threat then falls on your shoulders. Getting angry and resisting only adds to the legitimacy of the complaint. In most states, if the mental health evaluation finds you really are not a threat, you will get your property back. In some states, at least from anecdotal stories, it can take years and possibly a law suit to get them back.
A mental disorder or illness diagnosis can be a very subjective finding, although there are specific criteria and assessment tools they utilize which are intended to standardize the evaluation. It depends greatly on who is doing that evaluation. If that person happens to be an anti-gun person and you have an ‘arsenal’ of 5 guns and 120 rounds of ammunition (sarcasm intended) they may add more scrutiny to your evaluation. However if you have 50 guns….. ? I think you can see were this slippery slope leads.
We need to be careful what we wish for – creating a safer society can have some very serious negative consequences. We live in scary times. When I was younger we read books like A Brave New World, 1984, and Fahrenheit 451 thinking these were pure science fiction. Many of the ideas in these books are everyday experiences or news stories for us now. South Dakota is not considering any ‘red flag’ laws that I am aware of but as I submit this article there are still seven days left to bring a bill forward for 2019. If one is put forward it is very likely it will come through the Health and Human Services Committee. You can contact me for questions or comments at firstname.lastname@example.org