By Brian Doherty
The Federal Criminal Appeals blog reports on a decision from the Fourth Circuit Court of Appeals regarding when the government can use drug possession as an excuse to deny weapons-possession rights. In short, it can't just assert that there is a good reason to bar drug users from guns: it has to try to prove it. But the Court also seems to think such proof won't be too hard.
Let's take a walk through the decision to see what happened and why the Fourth Circuit decided as it did:
Following a police search that uncovered marijuana and firearms in Benjamin Carter’s West Virginia apartment, Carter conditionally pleaded guilty to possessing a firearm while being an unlawful user of marijuana, in violation of 18 U.S.C. § 922(g)(3). At the time of his arrest, Carter was using marijuana and conceded that he had been using it for approximately 15 years. Carter’s conditional guilty plea reserved for appeal the question of whether his § 922(g)(3) conviction violates his Second Amendment right to keep and bear arms.
Popular VideoThis judge looked an inmate square in the eyes and did something that left the entire courtroom in tears:
Although we conclude, applying the intermediate scrutiny standard, that Congress had an important objective for enacting § 922(g)(3) to reduce gun violence and might have reasonably served that objective by disarming drug users and addicts, we nonetheless find that the government failed to make the record to substantiate the fit between its objective and the means of serving that objective. Therefore, we vacate the judgment and remand for further proceedings.....
More on Carter's claims, from the decision:
Carter contends that § 922(g)(3) unjustifiably burdens his Second Amendment rights. Acknowledging that he is a user of marijuana, he contends that he was nonetheless entitled, under the Second Amendment, to purchase the guns for the lawful purpose of protecting himself and his nephew in his home against those who might intrude. And because the right of self-defense in the home is the "central component" of the Second Amendment protection, Heller, 554 U.S. at 599, and is "fundamental" and "necessary to our system of ordered liberty," [McDonald v. City of Chicago, 130 S. Ct. 3020, 3042 (2010)], Carter urges us to employ strict scrutiny in reviewing his claim that § 922(g)(3) infringes on his Second Amendment rights.
When strict scrutiny is employed, Carter argues,§ 922(g)(3) cannot survive. He agrees that the prevention of gun-related crime is a compelling government interest, but he insists that the statute is not narrowly tailored to advance that purpose. Rather, he maintains, § 922(g)(3) is over-inclusive in that it categorically disarms all unlawful drug users, some of whom do not pose a realistic threat of gun violence, and under-inclusive because it targets only those who use "a particular class of intoxicants" while excluding users of other intoxicants, such as alcohol, who present a comparable risk of gun violence.
Carter's arguments seem cogent to me. The Court didn't quite openly agree with them, though.
The government for its part claimed that drug users have no relevant Second Amendment rights, and that any judgement on the degree to which this restriction violated such rights if they exist fall under an "intermediate scrutiny" standard:
Under that standard, the government maintains, the statute is constitutional because it reflects Congress’ well-founded empirical judgment that gun ownership by illegal drug users "pose[s] a risk to society."
The Fourth Circuit went on to explain how it has been approaching Second Amendment cases post-Heller, using:
—a two-step approach...First, we inquire whether the statute in question "imposes a burden on conduct falling within the scope of the Second Amendment’s guarantee. This historical inquiry seeks to determine whether the conduct at issue was understood to be within the scope of the right at the time of ratification." [628 F.3d at 680.] And second, if the statute burdens such protected conduct, we apply "an appropriate form of means-end scrutiny."
The Fourth Circuit says that Carter's right can't implicate the "core" right of self-defense in the home that demands strict scrutiny, since in their reading of Heller that core right only applied to "law-abiding, responsible" citizens, so at best he gets intermediate scrutiny. The Court concedes that "the government’s interest in 'protecting the community from crime' by keeping guns out of the hands of dangerous persons is an important governmental interest."
Be that as it may, the Court said, "To discharge its burden of establishing a reasonable fit between the important goal of reducing gun violence and the prohibition in § 922(g)(3), the government may not rely upon mere 'anecdote and supposition.'" And in this particular case, the Court says, the government:
still bears the burden of showing that § 922(g)(3)’s limited imposition on Second Amendment rights proportionately advances the goal of preventing gun violence. And we conclude that in this case, the record it made is insufficient. Without pointing to any study, empirical data, or legislative findings, it merely argued to the district court that the fit was a matter of common sense....we therefore remand this issue to the district court to allow the government to develop a record sufficient to justify its argument that drug users and addicts possessing firearms are sufficiently dangerous to require disarming them.
Don't cheer this decision too much, drug users who want Second Amendment rights: The Fourth Circuit also thinks that:
This burden should not be difficult to satisfy in this case, as the government has already asserted in argument several risks of danger from mixing drugs and guns. For example, it claimed that due to the illegal nature of their activities, drug users and addicts would be more likely than other citizens to have hostile run-ins with law enforcement officers, which would threaten the safety of the law enforcement officers when guns are involved. It claimed that because drug users and addicts would "necessarily interact with a criminal element when obtaining their drugs," their transactions in the black market would present far greater risks of violence(including gun violence) than lawful commerce.
For more on the (generally government created) risk of "hostile run-ins with law enforcement officers" involving guns and drugs, see these Reason archives.
The full decision in U.S. v. Carter.
I reported for Reason last month on a burgeoning case out of Nevada challenging the government's ability to prevent medical marijuana cardholders from possessing guns. My book on the Heller case,Gun Control on Trial.