If South Dakota voters approve either ballot questions that greenlight some form of marijuana, it could complicate firearm transactions, legally.
When a gun is purchased from a licensed dealer, a form from the federal Alcohol Tobacco and Firearms asks if the purchaser is an unlawful user of, or addicted to, marijuana or other controlled substance. It warns the use or possession of marijuana remains unlawful under federal law regardless of state law.
If answered yes, the feds say that person is prohibited from possessing a firearm.
“This is the complex problem we have and the courts are not helping us because the courts won’t settle these issues.”
That’s Anthony Fabian, a licensed attorney in Colorado. He was president of the Colorado Shooting Association from 2001 to 2019. Colorado legalized medical and recreational marijuana during that timeframe.
“Right now, it’s been a kind of you-don’t-bother-me-I-don’t-bother-you type situation,’ Fabian says. “Where the feds have said ‘Hey, we’re not going to repeal our law, but we’re not going to enforce it in the individual states that have legalized it.’”
According to stats from the Colorado Bureau of Investigation, firearm transactions have remained steady, if not slightly increased some years.
Fabian says a literal interpretation of the second amendment would mean laws that restrict gun ownership are unconstitutional. However, the federal supremacy clause says federal law generally takes precedence over state law. So, where federal and state law conflict, federal law supersedes.
“When it comes to federal law saying that if you are a habitual user of marijuana—and also the fact that marijuana is an illegal substance—how do you resolve those two clearly distinct and separate legal doctrines? I don’t know.”
Absent an act of Congress, Fabian says federal courts or the supreme court will have to decide.
Officials with South Dakotans For Better Marijuana Laws agree. They say the conflict is a federal issue, not a state issue.
