Second Amendment

Fourth Circuit Says Government Needs More Proof of Link Between Drug Use and Gun Violence

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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.

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.

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80 responses to “Fourth Circuit Says Government Needs More Proof of Link Between Drug Use and Gun Violence

  1. 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.

    Doesn’t that mean drug users have a greater need for self protection than non users?

    1. totally ironic considering who makes them criminal in the first place and thus, who forces them underground and induces risks of violence

    2. What’s even worse is that they use the fact that it is illegal to demonstrate their point without seeing the bigger picture.

      If drugs weren’t illegal, people wouldn’t have to use the black market to get them, and their “greater risk of gun violence” disappears.

      Every example they cite as a “for instance” is a byproduct not of drug use, but of prohibition. See my quote below.

      When even the court, in a bit about what the government can show in order to better prove their case that drug users are more apt to use violence, can only point to it being illegal as the reason why there might be violence involved, you know that the position of prohibitionists is intellectually bankrupt.

      1. We already knew the position of prohibitionists is intellectually bankrupt, as proven by…Prohibition. But they won’t let history stop them, by Jove!

      2. you know that the position of prohibitionists is intellectually bankrupt

        The law is something to be obeyed. Unquestioningly. If you don’t like it, change it. In the mean time, OBEY.
        The black market is not caused by the law. It is cause by those who do not unquestioningly obey the law.
        Because they do not obey the law without question, they cannot be trusted.
        Drug laws are thoughtcrime. They weed out the people who do not unquestioningly obey.

        1. “The black market is not caused by the law.”…or, i left my front door unlocked & incentivized the criminal to trespass & steal.

          1. Well, if you live in Great Britain today the police will go into your unsecured home and take stuff – they’ll leave you a note about where you can go to get it back – in order to teach you a lesson.

          2. “If there’s one thing I hate in this world, its an unlocked foot locker!”

        2. The law is something to be obeyed. Unquestioningly. If you don’t like it, change it. In the mean time, OBEY.

          Nice to see you channeling Dunphy today.

          1. I’m giving you a choice, Jimbo: either put on these glasses or start eating that trash can.

            1. Put on the silly hat!

            2. Not this year.

            3. Oh man, this always takes forever.

        3. “The law is something to be obeyed. Unquestioningly. If you don’t like it, change it. In the mean time, OBEY.”

          I would encourage you to read Martin Luther King Jr.’s Letter from a Birmingham Jail regarding unjust laws:

          One may well ask: “How can you advocate breaking some laws and obeying others?” The answer lies in the fact that there are two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that “an unjust law is no law at all.”

          Obeying such laws is only serves to perpetuate them and makes them far more difficult to change.

        4. “They weed out the people who do not unquestioningly obey.”

          I see what you did there.

  2. 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.

    Seriously?

    1. I think they meant “drug users and addicts would be more likely than other citizens to have hostile run-ins with hostile law enforcement officers”

      1. you’re just butthurt because you got convicted of a crime

    2. Not even “what about the children?”, it’s “what about the cops?”. Dear god, I hope that line of reasoning isn’t effective.

  3. By the court’s rationale, defense attorneys are also associated with gun violence and could be denied tools to defend themselves with.

    1. No one is more associated with gun violence than the police. FFS, every time you hear about a shooting, those guys eventually turn up.

      1. OMG You’re right. The 4th circuit just gave an argument for disarming the police.

        That sound you hear is my head exploding.

  4. 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.”

    right so a drunkard wielding a gun poses less of threat according to this statute than a guy who smoked a joint because alcohol is legal..

    Yeah, don’t let that “well-founded empirical judgement” get in the way there Congress (and judges)

  5. By the court’s rationalizations, men are much more likely than women to engage in gun violence, therefore men should all be forcibly disarmed by the state.

    Apparently, “shall not be infringed” has a silent “not” for the Fourth Circuit.

    1. The right to bear arms does not apply to activities that clearly threaten public safety. This was understood at the time the second amendment was written.

      Just like the freedom of speech doesn’t extend to death threats.

      1. True.

        BUT, you have to make a death threat before you can be prosecuted or punished. The 1st amendment does not protect fighting words, inciting riots, etc.

        However, you cannot be gagged, have your computer removed, be required to have a permit to attend movies, etc. on the basis that you MIGHT do those things.

        They have to ‘wait’ for you to act before they can take any actions against you.

        Barring a person from possessing firearms because they’re a drug user on the basis laid out by the government is analogous to barring a person from attending a movie without tape over their mouth because they might yell fire.

        The 2nd amendment parallel to the 1st amendment’s yelling-fire-in-a-theater exception is the laws regulating discharge in populated areas. You can’t shoot firearms in the city UNLESS you’re at a shooting range, defending yourself, etc., the exact same way you can’t yell fire in a crowded theater, UNLESS there actually is a fire, you’re on stage and yelling fire is one of your lines, etc.

        Banning a person from carrying a firearm into public while intoxicated might be constitutional, but banning it simply because they possess intoxicants or are intoxicated in a private residence certainly isn’t.

        1. Don’t tell that to statists. They’ll think you a crackpot.

        2. “However, you cannot be gagged, have your computer removed, be required to have a permit to attend movies, etc. on the basis that you MIGHT do those things.”

          Indeed, there is a long line of case law that such “prior restraints” are unconstitutional under the First Amendment.

      2. I really don’t get where that comes from. I mean, the thing says “no law”. Not, “no law unless it’s libel, slander, or a death threat”. It just says “no law”. Period. The end. Seems that a plain reading would mean that I’m free to make death threats, shout fire wherever I damn well please, etc.

        Whether that is conducive to a functioning society or not is beside the point; it’s what the bloody document says.

        1. It also says “Congress”, nothing about “state legislatures” or “city councils”.

          Literalism is a double-edged swordfish.

          1. Isn’t it accepted that the 14th makes the BoR applicable to the states, as well? If so, then “no law” goes for them, too.

        2. Congress may make no law. The states are controlled by the 14th and that’s where things get a little complicated.

        3. It also says “freedom of speech,” not just “speech,” implying that this is a legal concept, not a specific act.

      3. “”The right to bear arms does not apply to activities that clearly threaten public safety. This was understood at the time the second amendment was written.””

        I’m not so sure of that since 1. dueling was an acceptable way of dealing with disputes when the 2nd amendment was passed. 2. Methods used to determine “dangerous” today are more about pop psych which wasn’t around 200 years ago.

      4. yeah… too bad they left that part out of the text..

      5. The right to bear arms does not apply to activities that clearly threaten public safety.

        Right, but being a casual joint-smoker and owning a handgun that you keep in your home for self-defense does not “clearly threaten public safety.” Witness the fact that this guy said he had been a pot user for 15 years. Evidently, this was his first run-in.

        It’s perfectly legal to have a liquor cabinet chock full of all kinds of booze, and to get shit-face schnockered nightly in your home if you want to, and also to own guns galore in that same home. But toke a joint now and then and all of as sudden you’re a clear threat to public safety?

        I am not a pot smoker, nor would I start using it if it suddenly became legal, but this is booshit.

        1. *Loud, enthusiastic cheering*

    2. I should add the disclaimer that in this case it’s totally implausible to claim drug users are a threat to public safety. But there are instances where certain people engaging in certain activities are NOT covered by R2KBA

      1. Why not? Drug users do not unquestioningly obey the law.

        If they go and disobey laws against drug use, what’s to say they won’t disobey laws regarding murder, rape and that sort of thing?

        Law and morality are one and the same. Those who disobeys drug laws have no morals.

        1. True to your name?

          1. What do you think?

      2. I should add the disclaimer that in this case it’s totally implausible to claim drug users are a threat to public safety. But there are instances where certain people engaging in certain activities are NOT covered by R2KBA

        Not buying it. Give an example of one of these situations where, in your mind, the plain text of the Constitution should be ignored. Perhaps you will convince me, but I can’t think of any such situation.

        And no, you can’t use incarcerated felons as an example.

        1. Mentally ill people are a slam dunk. Young children too, though they’re denied many other rights of adults too so it’s not as dispositive.

          I’d say that violent felons should not be permitted to have weapons for some period of time after release too, but reasonable people can disagree on that.

          1. Considering there’s a wide range of determination for mental illness and the difference in functionality between many mentally ill people, I don’t think it’s a slam dunk at all.

            Unless you’re meaning people who have been determined to be a threat to themselves or others, but those people are usually locked up in an institution anyways, aren’t they?

            1. Liberalism is a mental disorder. Thankfully most liberals are also afraid to have guns.

            2. There are plenty of people roaming the streets who are significantly likely to attempt to hurt themselves or others if they don’t take their medication.

              When they’re just using their bare hands or a knife, there’s a low limit to how much harm they can cause. But a gun is a force multiplier (you know, the reason people want to have one).

              If Jared Lee Loughner had to use a machete to do his thing, a lot fewer people would have been hurt. It’s not the fault of the law, which does bar mentally ill people from firearm possession, but the fault of his being undiagnosed; but your position would seem to indicate that he should have been allowed to have a gun even if he was diagnosed.

              1. No, that’s not my position at all. I was simply objecting to your use of the catch-all term of mentally ill to a very limited subset of mentally ill people.

                If medical professionals have determined that a person, accidentally or intentionally, missing their medication would make them a threat to themselves or others, then I agree there is a basis for restricting them.

              2. “If Jared Lee Loughner had to use a machete to do his thing, a lot fewer people would have been hurt.”

                Bullshit.

                1. “Bullshit.”

                  It’s much easier to outrun a knife than a bullet, moron.

                  1. But just how easy is it to outrun Jared Lee Loughner? That’s the real question. You pull out a machete in a crowd and start swinging. Lots of people are gonna get hurt.

                    1. The number of people who get hurt will be limited to those within the radius of his arm + machete.

                      He could have shot Gifford in the head or killed that 9 year old girl from 20 feet away. Can’t do that with a machete.

          2. What Applederry said. What’s your definition of “mentally ill”? According to the doctors, something like 50% of Americans have a mental illness of some sort, ranging from depression to low-grade autism and all sorts of other bullshit.

            1. “Wanting to own a gun proves that you are mentally ill.”

              And the circle is complete…

              1. Let me see if I’ve got this straight: in order to be grounded, I’ve got to be crazy and I must be crazy to keep flying. But if I ask to be grounded, that means I’m not crazy any more and I have to keep flying.

                -Yossarian

            2. You’d have to be careful about how it’s defined in practice, no doubt. But the difficulties of drawing lines should not preclude lines from being drawn.

              Allowing a diagnosed sociopathic schizophrenic to walk around with firearms would be, well, insane.

              1. Allowing a diagnosed sociopathic schizophrenic to walk around with firearms would be, well, insane.

                Then would the people who allowed him to walk around with the gun themselves be denied that right?

                /snark

        2. Actually, post-incarceration felons have long been denied rights like suffrage. Of course, felonies used to be murder, rape, and brigandage, so it might have made sense to permanently withhold their 2A rights after due process.

    3. By the court’s rationalizations, men are much more likely than women to engage in gun violence, therefore men should all be forcibly disarmed by the state.

      I actually saw this line of reasoning in the comments at Jezebel, on the story of the young mother who shot her intruder on christmas. Something like:
      “I think guns cause more harm than good, but maybe we can make an exception for women only”. And there were many praises for that idiocy.

  6. Urban minorities are also more likely to have run-ins with police, so I guess we don’t have to respect their rights either.

    Oh and wtf:

    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.

    This test clearly doesn’t get applied to the 1st amendment, so why the 2nd?

    1. And at the time of the 2nd, it was common for people to grow their own opium and they could do whatever they wanted to with their hemp. So even if they do want to go that way, I’m pretty sure the conduct in question would not have been a problem at the time.

      1. Yes, I agree.

        I’m just irritated that they don’t ask whether the ratifiers of the 1st would have included pornography and obscene words in the freedom of speech, but they ask whether the ratifiers of the 2nd would have included, say, carrying rifles in urban areas.

  7. “What? Harmless? Is that all it’s got to say? Harmless! One word!”
    Ford shrugged. “Well, there are a hundred billion stars in the Galaxy, and only a limited amount of space in the book’s microprocessors,” he said, “and no one knew much about the Earth of course.”
    “Well for God’s sake I hope you managed to rectify that a bit.”
    “Oh yes, well I managed to transmit a new entry off to the editor. He had to trim it a bit, but it’s still an improvement.”
    “And what does it say now?” asked Arthur.
    “Mostly harmless,” admitted Ford with a slightly embarrassed cough.
    — from The Hitch Hiker’s Guide to the Galaxy by Douglas Adams

  8. 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.

    Some people have a hard time imagining that the Drug War is encroaching on our civil liberties in all sorts of ways, but I don’t have that problem.

    Captain Obvious says, “This is an excellent reason for gun nuts to get on board with ending the Drug War.”

    1. Captain Obvious would be forgetting that gun nuts generally view drug users as being scum beneath contempt and typically have no problem limiting the firearm rights of people they don’t like.

      I’m the odd one out; a drug user and a responsible multiple gun owner, including the eevvviiiiillll assault rifles.

      1. The worst part of being part of the firearm enthusiast community in America is dealing with conservative gun rights advocates. They’re very often law and order republicans who worship the state and would deny rights to people in a heart beat and, as Gojira points out, happily label ALL drug users as scum that don’t deserve any rights, much less the right to walk down the street and kill them.

    2. But then we’d be overrun with drug users in the street waving their guns around and killing people indiscriminately.

      Why do you hate innocent people?

  9. This whole argument rests on the premise that someone who was convicted of using drugs years ago, is still using them.

    What the government needs to prove isn’t that drug users have a propensity for violence, blah, blah. They need to show that former drug users have a propensity for violence.

    1. What they SHOULD have to prove is that the particular drug user in question has a propensity of violence.

      What bearing does it have at all if they can show that “drug users” might be more apt to violence if the actual person in question, who admittedly smoked marijuana for 15 years, hasn’t shown that HE is more apt to commit violence?

      Lopping “drug users” in one category is no different than lopping all black people in one category in an attempt to deny their rights.

      1. This is more or less what I wanted to say.

    2. Using drugs shows contempt for the law, for the law is the law is the law and it must be obeyed.
      If one doesn’t obey the law, how can they be trusted with a gun?
      If the law is the only thing that stops people from going on shooting rampages, and drug users don’t obey the law, what’s to stop them from going on a shooting rampage?

      1. Susan?

        Whatever happened to her anyhow?

  10. risk of gun violence

    Sorry, the concept eludes me.

  11. “Fourth Circuit Says Government Needs More Proof of Link Between Drug Use and Gun Violence”

    Show them the film Scarface.

    http://www.youtube.com/watch?v=g2wD5TaMf2k

  12. IIRC, the prohibition on owning firearms if you are an “unlawful user of marijuana or other illegal drugs” was part of the Gun Control Act of 1968, so it was probably aimed at a)hippies and b)people like the Black Panthers.

    Why it isn’t considered a deprivation of rights without trial (and, therefore, to my non-lawyerly thinking a violation of the 5th Amendment) I don’t know.

    1. ^^THIS^^

      It’s guilt by association. This guy smokes a plant, therefore he is likely to go out and shoot someone unjustly.

      What the fuck?

      1. Those who wear tennis shoes are more apt to be fleet of foot and likely to steal things from people.

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