Charleston shooting

Why Was Dylann Roof's Gun Purchase Illegal?

Should "unlawful users" of "controlled substances" automatically lose their Second Amendment rights?

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As Brian Doherty noted on Friday, the FBI has concluded that Dylann Roof, the man charged with murdering nine people at the Emanuel AME Church in Charleston, South Carolina, last month, should not have been allowed to buy the pistol he used in the attack. That point seems debatable to me, although either way it's clear that requiring background checks for all gun sales would not have made a difference in this case. Roof underwent a background check, which according to the FBI did not flag him because an agent contacted the wrong law enforcement agency for information about Roof's February 28 drug arrest.

The claim that Roof was legally disqualified from buying a gun is based on a provision of federal law that prohibits selling a firearm to someone who is "an unlawful user of or addicted to any controlled substance." The FBI argues that Roof's misdemeanor arrest for possession of Suboxone, a Schedule III combination of the narcotic buprenorphine and the opioid antagonist naloxone (legally used to treat opioid addicts), showed he was "an unlawful user of or addicted to any controlled substance" because Roof admitted he had obtained the drug from a friend and did not have a prescription for it. But it's not clear that admission was enough to meet this criterion for exclusion.

As Eugene Volokh notes, the relevant federal regulation defines "unlawful user" as "a current user of a controlled substance in a manner other than as prescribed by a licensed physician." It adds:

Such use is not limited to the use of drugs on a particular day, or within a matter of days or weeks before, but rather that the unlawful use has occurred recently enough to indicate that the individual is actively engaged in such conduct. A person may be an unlawful current user of a controlled substance even though the substance is not being used at the precise time the person seeks to acquire a firearm or receives or possesses a firearm. An inference of current use may be drawn from evidence of a recent use or possession of a controlled substance or a pattern of use or possession that reasonably covers the present time, e.g., a conviction for use or possession of a controlled substance within the past year; multiple arrests for such offenses within the past 5 years if the most recent arrest occurred within the past year; or persons found through a drug test to use a controlled substance unlawfully, provided that the test was administered within the past year. 

In Roof's case, the evidence of "recent use or possession" did not fit any of these examples: He had not been convicted, he had not been arrested for possession multiple times, and he had not (as far as we know) tested positive for an illegal drug. But according to FBI Director James Comey, Roof's admission to illegally possessing Suboxone on February 28 was enough to show he was "actively engaged" in unlawful drug use a month and a half later, when he bought the gun. Had the FBI been aware of that admission, Comey says, Roof would have been turned away. Maybe. But if so, that fact only underlines the arbitrariness of the criteria used to strip people of their Second Amendment rights.

According to federal survey data, something like 25 million Americans have unlawfully used controlled substances in the last month, and around 42 million have done so in the last year. Allowing for underreporting, the true numbers are probably substantially larger. The vast majority of these people are cannabis consumers, who are still treated as criminals under federal law even if they live in one of the 23 states that have legalized marijuana for medcal or recreational use. This group of legally disarmed citizens also includes anyone who occasionally uses a painkiller, sleeping pill, or stimulant prescribed for a friend or relative, along with everyone who now and then enjoys cocaine, MDMA, or other illegal intoxicants.

This criterion for exclusion makes as little sense as the arbitrary drug prohibitions on which it is based. Maybe less. Raging alcoholics are legally allowed to own guns, but for some reason weekened pot smokers are not. Such distinctions have no obvious connection to public safety. Likewise the blanket disqualifications for people convicted of felonies, whether or not they were violent or involved weapons, and for people who have entered or remained in the United States without permission. The fact that a tiny percentage of people in these categories will commit mass murder hardly validates depriving them all of the basic human right to armed self-defense.

Even if federal law rightly prohibits all these harmless people from owning guns, and even if Comey is right that Roof's purchase would have been blocked if the law had been properly enforced, President Obama's musing about whether a universal background check requirement could have prevented the Charleston massacre is plainly nonsensical. Roof did undergo a background check, but according to the FBI it was not as complete as it should have been. Hence the "common-sense gun safety reforms" that Congress considered in 2013, which would have extended the background check requirement to private gun sales, could not possibly have prevented Roof from committing his horrific crimes.

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  1. People who argue for the extended background checks would do well for themselves if they could admit that they would not work in all circumstances (like the SC murders). Instead, they lack the basic honesty to say that their proposals are not a panacea but a small step towards their goals (likely complete disarmament).

    One thing I never see discussed is if private citizens will have access to running the forms themselves or will be forced to go to an FFL. If they have to go to an FFL who will pay for that person’s time? I cannot think of another tangible item that I could not sell in a F2F transaction without an intermediary charging me for his time.

    1. Yes, the goal is for everyone to go through an FFL holder. You are correct in the “who pays for it?” musings – the true goal is abolition of private firearms transfers.

      1. Always has been, always will be. And they will never stop until we are soviet russia…

        1. “And they will never stop until we are soviet russia?”

          Well, only because Soviet Russia would liquidate them. Soviet Russia (or Mao’s China) isn’t their goal ?. because they are too stupid to realize that that is the inevitable end of their policies.

      2. And then they further clamp down on FFLs. Remember when pretty much anyone could be one out of your house, then they made the requirements so onerous that only brick and mortar stores could keep up?

  2. Government incompetence – is it feature or a bug?

    1. The featured bug?

  3. Raging alcoholics are legally allowed to own guns, but for some reason weekened pot smokers are not.

    Emphasis added. But smoking during the week strengthens them.

    1. Since alcohol is a controlled substance those two martinis or a beer before supper every night will probably disqualify one from firearms ownership. Be very careful how you answer your doctor’s question, “Do you drink or smoke?”

      1. Simple solution: Don’t be honest with your doctor. Works for me and I haven’t been nagged by him for years…

        1. When doctors started having you fill in multi page forms, asking questions about your family , your lifestyle, and generally behaving as if they were ghost-writing your autobiography, I started scrawling “What earthly business is this of yours?” over large parts of the form. None of them has ever dared answer me.

  4. the “common-sense gun safety reforms” that Congress considered … could not possibly have prevented Roof from committing his horrific crimes.

    Which is why *more* than common-sense reforms are needed, DUH! It’s time to apply *artificial intelligence* to the problem of gun violence.

    1. That won’t work, Artificial intelligence might conclude that genocide is the only answer. No people, no problem

      1. No people, no problem

        “The Million Robot March To Stop Particle-Beam Violence”

        1. Lovin’ it! LOL!!

  5. We obviously need another law to cover for this other law… *rinse, repeat*

    1. “When what you’re doing doesn’t work for 50 years, it’s time to try something new.”

      1. Right hence all the new laws and regulations.

  6. Not a good poster boy for this issue.

  7. Avoiding the real issue here, which is that the confederate flag made him do it.

    1. Isn’t the real issue an agent’s error in contacting the wrong law enforcement agency?

      More *training*, dammit!

    2. The fact that the ones exploiting this crime are going after the Confederate flag rather than guns, may indicate that they don’t think gun-control is the winning issue they formerly thought it was.

      1. An astute point and I agree. They will be back though. Like a case of herpes these people always flair up again.

      2. Low-hanging fruit, and soft targets.. two of the finest things in life, for an intellectually cowardly/lazy ginned up mob. I look forward to the same collective outrage at the next street protest when all the IWW and sickle & hammer flags are unfurled…

  8. What we need is a law against federal agents losing their firearms.

    1. Have you considered making being a murdering-fuck-faced-fuck illegal? Probably clear these things right up.

    2. Better to just outlaw armed federal agents all together.

  9. And so, in a perfect world.. an unaccountable enforcer of the states will, whose employees suffer from the same critical flaws, at a rate of more than double the rest of the populace, are fully trustworthy enough to hypocritically deny others the same civil right that entitles them to carry firearms.. like all other civilians in this country..

    .
    And yet another example of the progs being too stupid to comprehend what their shrieking for….

  10. Arguing that Roof’s purchase should not have blocked is a very stupid argument to make.

    Sure pure libertarians are against all background checks, but making this argument now isn’t going to make the brainless proggies just say oh okay and go away. They’ll double down on their real goals of total firearms tracking to “fix” this problem.

    1. Remove the masks, and bring on the intellectual honesty… It’s about time.. The prog has been allowed to shroud such objective machinations in the shadows of ambiguity with buzzwords like “common sense”, for far too long. Vague notions of what “common sense gun control”, are never fully defined. Let them fully define their goals, publicly.. explain how all firearm purchases will be tracked, and the punishments for loaning/trading/heir looming/selling outside of the federally controlled network would look like, and how that will deter murderers and other criminals that just couldn’t give a shit.. and die on that hill… Force them to be absolutely clear, I look forward to then fucking that presentation up..

    2. Agreeing with the progs and telling them what they want to hear doesn’t make them go away either. I still remember how they acted when the Brady Bill was passed; activists openly said things like “…the camel’s nose is under the tent, just wait until they see the whole camel!”

  11. Just look at this psycho! The real problem here is who the fuck would sell him a gun!?

  12. Actually, I think 11(e) on the 4473 would include the “raging alcoholic”, but, of course, there’s not a central database of them.

  13. Should “unlawful users” of “controlled substances” automatically lose their Second Amendment rights?

    Nobody can lose their “2nd Amendment right” for the simple reason that the 2nd Amendment does not grant a right. That right already exists ?the right to own PROPERTY? which is inalienable. The fact that government uses force and aggression to preclude a person from exercising his or her right to possess a gun does not mean the person lost his right. A right is something we already have; it is our ability to act, with or on our bodies and by extension the things we possess or produced.

    What we should talk about is the government’s ability to abridge a person’s right to possess a gun. Is it lawful for the government to do so according to the limitations enumerated in the Constitution?

  14. “”SEE!! Libertarians are racists!””

    /one of our resident prog trolls

  15. I agree with the point that drug users shouldn’t be categorically banned from firearm rights, but holy hell this is not the hill to fight that battle on!

    1. Because everyone should be terrified of potentially being labeled a racist-supporter for failing to throw rocks at the racist hard enough

      No one should dare question the FBI’s ridiculous claims (*which may have no basis in fact) that the background-check system is supposed to be able to effectively screen people for misdemeanor arrests for behavior that isn’t even remotely ‘violent’

      Its stupid. The FBI is being used for political purposes to try and froth up the gun-control crowd during an election year. Of course no one should point this out because then they’ll say you’re siding with the racists, right?

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  17. I didn’t think that any of the rights named by the constitution were revocable.

    If government can take away your right to own a gun then what is to stop them from taking away your right to speech, religion or unreasonable searches or seizure.

    I also thought that the bill of rights was a restrict on what the government not on the people so the right to own a gun is universal and all citizens have an unrestricted right to them

    On a practical matter – restricting gun ownership has never been proven to reduce crime or violence – only incarceration of violent criminals has.

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