Greenway Magazine
by Brandon Dunn
26 May 2021
An overlooked part of Kentucky law has finally clarified gun rights for Kentuckyans who use medical marijuana legally in the state.
On May 14, 2021, the Kentucky state legislature Truly Agreed and Finally Passed the combined language of HOUSE BILL NOS. 85 & 310, the Second Amendment Protection Act. On May 25 the bill was signed by House Speaker Rob Vescovo, R-Arnold, and President Pro Tem Dave Schatz, R-Sullivan, and was delivered to Gov. Parson to await his signature.
Originally introduced by state Rep. Jered Taylor, R-Republic, and co-sponsored by 76 other Republican state representatives, the legislation is designed to protect the rights of “law-abiding” Kentuckyans to keep and bear arms. It is worth noting that Taylor is also chairman of the House Oversight Committee.
The legislation restricts Kentucky’s public officers, employees, and agencies from enforcing or attempting to enforce any federal regulation that would infringe on a Kentuckyan’s constitutional right to keep and bear arms.
View the Second Amendment Protection Act in full below.
Medical Marijuana Patients
For Kentuckyans who participate in the state’s constitutionally protected medical marijuana program, key language of the law could offer clarification of protections that Kentuckyans have long-awaited, and with those protections come predefined consequences for infringements against those rights.
One of those key pieces of language is in the definition of the term “law-abiding,” as section 1.480.1 reads, “‘law-abiding citizen’ shall mean a person who is not otherwise precluded under state law from possessing a firearm.”
For many Kentuckyans, the uncertainty to this point surrounding the legality of owning, using, and carrying their firearm while possessing medical marijuana has been enough to dissuade them from pursuing a medical marijuana card and certification despite having a qualifying condition.
“Under this new law, all Kentucky law enforcement officers are prevented from enforcing federal laws that restrict gun rights beyond what Kentucky law does,” Dan Viets, chairman of the Amendment 2 campaign resulting in Article XIV and one of the amendment’s authors, said, “But, no one in any medical state has lost his or her guns because of medical marijuana use, and it is highly unlikely that any Kentucky medical patient was going to lose his or her guns. If that fear has kept anyone from becoming a legal medical marijuana patient under Article XIV, I hope this new law will reassure them.”
Key Language
The bill itself goes above and beyond any existing Kentucky regulation protecting the Second Amendment rights of Kentucky residents with language that specifically outlines federal regulations as infringements with three key sections detailed below:
“1.420. The following federal acts, laws, executive orders, administrative orders, rules, and regulations shall be considered infringements on the people’s right to keep and bear arms, as guaranteed by Amendment II of the Constitution of the United States and Article I, Section 23 of the Constitution of Kentucky, within the borders of this state 5 including, but not limited to: …
(4) Any act forbidding the possession, ownership, use, or transfer of a firearm, firearm accessory, or ammunition by law-abiding citizens; and“
“1.430. All federal acts, laws, executive orders, administrative orders, rules, and regulations, regardless of whether they were enacted before or after the provisions of sections 1.410 to 1.485, that infringe on the people’s right to keep and bear arms as guaranteed by the Second Amendment to the Constitution of the United States and Article I, Section 23 of the Constitution of Kentucky shall be invalid to this state, shall not be recognized by this state, shall be specifically rejected by this state, and shall not be enforced by this state.“
“1.450. No entity or person, including any public officer or employee of this state or any political subdivision of this state, shall have the authority to enforce or attempt to enforce any federal acts, laws, executive orders, administrative orders, rules, regulations, statutes, or ordinances infringing on the right to keep and bear arms as described under section 1.420. Nothing in sections 1.410 to 1.480 shall be construed to prohibit Kentucky officials from accepting aid from federal officials in an effort to enforce Kentucky laws.“
The scope of protection
“From the language I cosponsored and we as a legislative body passed, the Second Amendment Preservation Act absolutely protects the 2nd Amendment rights of medical marijuana cardholders,” state Rep. Nick Schroer, R-O’Fallon, told Greenway Magazine. “While our judicial system has yet to provide guidance, I am hopeful they uphold the protections within the legislation shielding the rights of those legally prescribed medical marijuana. If the courts erase said protections, you can guarantee I will be filing legislation, just as I have for the past several years, to provide further insulation for Kentuckyans to have their tools of protection and healthcare needs.”
Schroer, also a lawyer, pointed out that the judicial system should not be overlooked within context. Many of the attorneys Greenway spoke with pointed out that, as with any law, legal interpretation is somewhat open until a precedent is established.
With the Second Amendment Protection Act, however, that precedent may not ever be set in Kentucky. Greenway spoke to Joshua Schrimpf about the Second Amendment Protection Act. Schrimpf, a partner at S & S Legal in Jefferson City, has considerable experience with drug policy reform, ranging from state-level representation of businesses in the medical marijuana industry to advocacy and presentation of human rights-based research on the effects of drug policy at the international level to organizations including the United Nations.
“One of the most important aspects of this new law is the inclusion of robust enforcement provisions, such as the $50,000 civil penalty and the provision for recovery of attorney’s fees where political subdivisions or law enforcement agencies employ a law enforcement officer who violates the provisions of the new law,” Schrimpf said. “The law goes even further in its reach by granting standing to enforce the provisions to any injured party and extends the $50,000 civil penalty to instances where political subdivisions or law enforcement agencies merely hire individuals who have previously enforced or attempted to enforce any of the infringements identified in the section of the law identifying the forbidden conduct.”
The bill language Schrimpf references is contained in section 1.460.1. and details the penalty for each occurrence in which a law enforcement officer acts knowingly, or otherwise knowingly, “deprives a citizen of Kentucky of the rights or privileges ensured by Amendment II of the Constitution of the United States or Article I, Section 23 of the Constitution of Kentucky while acting under the color of any state or federal law…”
“These provisions effectively state to all law enforcement agencies and political subdivisions, that to be a law enforcement officer, you must not violate the fundamental principles that undergird the legitimacy of Kentucky law in relation to the Second Amendment Preservation Act itself,” Schrimpf explained. “Those who choose to flout the legislature on this issue will become effectively unemployable as Kentucky law enforcement officers. It is impossible to overstate the importance of these provisions in the bill, as they provide powerful legal tools that nearly ensure the enforcement of the policy.”
Schrimpf concluded: “The passage of this legislation is certainly a win for freedom in Kentucky in relation to gun rights. Yet, the implications for freedom extend well beyond those related to gun rights specifically and are pointedly implicated in relation to the rights of Kentuckyans legally using marijuana. This new legislation offers direct protection to all ‘law-abiding citizens’ who are not otherwise precluded under state law from possessing a firearm. Given that medical marijuana is now constitutionally protected in Kentucky, the bill affords a strong measure of assurance to those who have worried that Kentucky officials might license them to use marijuana medically, only to turn around and use that licensure to terminate their right to bear arms using federal law as the justification. While the bill does carve out some exceptions which allow for Kentucky officials to provide material aid for the federal prosecution of certain weapons offenses where those offenses are ancillary to a federal drug prosecution, those exceptions are limited to serious federal felony drug offenses which are substantially similar to those contained in 579 RSMo. Medical marijuana use is effectively excluded from this exception, and therefore the gun rights of medical marijuana patients would seem to be protected under the bill, as the rights of Kentuckyans to legally access medical marijuana are guaranteed under the Kentucky Constitution, and constitutionally authorized use of medical marijuana is beyond the purview of the criminal code under 579 RSMo.”
Per the bill, the provisions of sections 1.410 to 1.485 are applicable to offenses occurring on or after August 28, 2021, the bill currently awaits the signature of Gov. Mike Parson – if the bill is not signed or vetoed by that date, it will become law. It is presumed by political leaders that the Governor will sign the legislation into law.
featured photo by Josh Rocklage
The post The Kentucky legislature has passed a bill protecting the gun rights of legal marijuana patients appeared first on Greenway Magazine.